HAIN CELESTIAL: Hearing in "Morrison" Suit Set for March 7HALLIBURTON CO: Continues to Defend Suit Over Duncan FacilityHALLIBURTON CO: First Phase in Macondo MDL Trial to Start Feb. 25HALLIBURTON CO: Oral Argument in "John Fund" Appeal Set for MarchHCA HOLDINGS: March Hearing Set on Bid to Dismiss Securities Suit

Beginning in January 2013, the Defendant contacted him on hiscellular telephone in an attempt to solicit him into purchasingone of THE Defendant's many insurance policies available, Mr. Chenalleges. To date, he asserts, the Defendant has placed no lessthan eight calls to his cellular telephone using an automatictelephone dialing system.

ALTERRA CAPITAL: Faces Merger-Related Class Suit in New York------------------------------------------------------------Alterra Capital Holdings Limited faces a merger-related classaction lawsuit in New York, according to the Company'sFebruary 11, 2013, Form 8-K filing with the U.S. Securities andExchange Commission.

Alterra Capital Holdings Limited entered into an Agreement andPlan of Merger dated as of December 18, 2012, with MarkelCorporation and Commonwealth Merger Subsidiary Limited, a whollyowned subsidiary of Markel. Following the Merger, Alterra Capitalwill become a direct, wholly-owned subsidiary of Markel.

On February 8, 2013, a putative class action lawsuit was filed inthe United States District Court for the Southern District of NewYork regarding the Merger. The complaint, purportedly filed onbehalf of shareholders of Alterra, accuses Alterra, its board,Markel and Merger Sub of, among other things, violations of thesecurities laws and the Bermuda Companies Act. The complaintseeks, among other things, to enjoin the defendants fromcompleting the Merger as currently contemplated.

AMERICAN EXPRESS: Clement Sides With Merchants in Class Action--------------------------------------------------------------The National Law Journal reports that former Solicitor GeneralPaul Clement, usually a pro-business superstar of Supreme Courtadvocacy, will argue in an upcoming high court arbitration case --but not for the party you might think. Instead of representingdefendant American Express, Mr. Clement will stand up formerchants who want to pursue a class action antitrust challengeagainst credit card "swipe fees."

AMERICAN SUPERCONDUCTOR: Continues to Defend Securities Suit------------------------------------------------------------American Superconductor Corporation continues to defend itselfagainst a consolidated lawsuit arising from its securitiesoffering, according to the Company's February 11, 2013, Form 10-Qfiling with the U.S. Securities and Exchange Commission for thequarter ended December 31, 2012.

Between April 6, 2011, and May 12, 2011, seven putative securitiesclass action complaints were filed against the Company and two ofits officers in the United States District Court for the Districtof Massachusetts; one complaint additionally asserted claimsagainst the underwriters who participated in the Company'sNovember 12, 2010 securities offering. On June 7, 2011, theUnited States District Court for the District of Massachusettsconsolidated these actions under the caption Lenartz v. AmericanSuperconductor Corporation, et al., Docket No. 1:11-cv-10582-WGY.On August 31, 2011, Lead Plaintiff, the Plumbers and PipefittersNational Pension Fund, filed a consolidated amended complaintagainst the Company, its officers and directors, and theunderwriters who participated in the Company's November 12, 2010securities offering, asserting claims under sections 10(b) and20(a) of the Securities Exchange Act of 1934 and Rule 10b-5promulgated under the Securities Exchange Act of 1934 (the"Exchange Act"), as well as under sections 11, 12(a)(2) and 15 ofthe Securities Act of 1933 (the "Securities Act"). The complaintalleges that during the relevant class period, the Company and itsofficers omitted to state material facts and made materially falseand misleading statements relating to, among other things, itsprojected and recognized revenues and earnings, as well as itsrelationship with Sinovel Wind Group Co., Ltd. that artificiallyinflated the value of the Company's stock price.

The complaint further alleges that the Company's November 12, 2010securities offering contained untrue statements of material factsand omitted to state material facts required to be stated therein.The plaintiffs seek unspecified damages, rescindment of theCompany's November 12, 2010 securities offering, and an award ofcosts and expenses, including attorney's fees. All defendantsmoved to dismiss the consolidated amended complaint. OnDecember 16, 2011, the district court issued a summary orderdeclining to dismiss the Securities Act claims against the Companyand its officers, and taking under advisement the motion todismiss the Exchange Act claims against the Company and itsofficers and the motion to dismiss the Securities Act claims madeagainst the underwriters. On July 26, 2012, the district courtdismissed the Exchange Act claims against the Company and itsofficers and denied the motion to dismiss the Securities Actclaims made against the underwriters.

BMW AG: Recalls 30T SUVs to Fix Oil Leak That Can Hamper Brakes---------------------------------------------------------------The Associated Press reports BMW AG is recalling more than 30,000SUVs to fix an oil leak that can knock out the power-assistedbraking.

The German auto maker said the recall covers X5 SUVs in the U.S.from the 2007 through 2010 model years.

The Company said a small amount of oil can leak from a brake hoseand cause the power-assisted braking to fail. The brakes wouldstill work, but the problem could increase stopping distances andcause a crash.

BMW said it has no reports of crashes or injuries. The problemwas discovered when warranty claims increased.

The Company will replace a brake vacuum line hose free of charge.The recall is expected to start this month.

BOEING CO: Continues to Defend ERISA-Violation Suit in Illinois---------------------------------------------------------------The Boeing Company continues to defend itself against a classaction lawsuit in Illinois, according to the Company'sFebruary 11, 2013, Form 10-K filing with the U.S. Securities andExchange Commission for the year ended December 31, 2012.

On October 13, 2006, the Company was named as a defendant in alawsuit filed in the U.S. District Court for the Southern Districtof Illinois. Plaintiffs, seeking to represent a class ofsimilarly situated participants and beneficiaries in The BoeingCompany Voluntary Investment Plan (the VIP), alleged that fees andexpenses incurred by the VIP were and are unreasonable andexcessive, not incurred solely for the benefit of the VIP and itsparticipants, and were undisclosed to participants. Theplaintiffs further alleged that defendants breached theirfiduciary duties in violation of Section 502(a)(2) of the EmployeeRetirement Income Security Act of 1974 ("ERISA"), and soughtinjunctive and equitable relief pursuant to Section 502(a)(3) ofERISA. During the first quarter of 2010, the Seventh CircuitCourt of Appeals granted a stay of trial proceedings in thedistrict court pending resolution of an appeal made by Boeing in2008 to the case's class certification order. On January 21,2011, the Seventh Circuit reversed the district court's classcertification order and decertified the class. The SeventhCircuit remanded the case to the district court for furtherproceedings. On March 2, 2011, plaintiffs filed an amended motionfor class certification and a supplemental motion on August 7,2011. Boeing's opposition to class certification was filed onSeptember 6, 2011. Plaintiffs' reply brief in support of classcertification was filed on September 27, 2011. The court hasstated its intent to issue rulings on the amended motion for classcertification and the alternative motion to proceed as a directaction for breach of fiduciary duty and then stay the case untilit is determined if an appeal of the class certification order isfiled. As a result, on September 19, 2012, the district courtissued an order denying Boeing's motions for summary judgment aspremature pending class determination.

The Company says it cannot reasonably estimate the range of loss,if any, that may result from this matter given the currentprocedural status of the litigation.

BOEING CO: Oral Argument in Securities Suit Appeals on Feb. 25--------------------------------------------------------------Oral argument in the appeals relating to the dismissal of asecurities class action lawsuit against The Boeing Company will beheld on February 25, 2013, according to the Company'sFebruary 11, 2013, Form 10-K filing with the U.S. Securities andExchange Commission for the year ended December 31, 2012.

On November 13, 2009, plaintiff shareholders filed a putativesecurities fraud class action against The Boeing Company and twoof its senior executives in federal district court in Chicago.This lawsuit arose from the Company's June 2009 announcement thatthe first flight of the 787 Dreamliner would be postponed due to aneed to reinforce an area within the side-of-body section of theaircraft. Plaintiffs contended that the Company was aware beforeJune 2009 that the first flight could not take place as scheduleddue to issues with the side-of-body section of the aircraft, andthat the Company's determination not to announce this delayearlier resulted in an artificial inflation of its stock price fora multi-week period in May and June 2009. On March 7, 2011, theCourt dismissed the complaint with prejudice. On March 19, 2012,the Court denied the plaintiffs' request to reconsider that order.On April 12, 2012, plaintiffs filed a Notice of Appeal, and onApril 25, 2012, Boeing filed a Notice of Cross-Appeal based on thedistrict court's failure to award sanctions against theplaintiffs. Oral argument in the Seventh Circuit Court of Appealswill be held on February 25, 2013. The Company expects a decisionby the end of the second quarter of 2013.

BOEING CO: Still Defends ERISA-Violation Class Suits in Kansas--------------------------------------------------------------The Boeing Company continues to defend itself against two classaction lawsuits pending in Kansas, according to the Company'sFebruary 11, 2013, Form 10-K filing with the U.S. Securities andExchange Commission for the year ended December 31, 2012.

The Company has been named as a defendant in two pending classaction lawsuits filed in the U.S. District Court for the Districtof Kansas, each related to the 2005 sale of the Company's formerWichita facility to Spirit AeroSystems, Inc. The first actioninvolves allegations that Spirit's hiring decisions following thesale were tainted by age discrimination, violated the EmployeeRetirement Income Security Act of 1974, violated the Company'scollective bargaining agreements, and constituted retaliation.The case was brought in 2006 as a class action on behalf ofindividuals not hired by Spirit. The court granted summaryjudgment in 2010 in favor of Boeing and Spirit on all class actionclaims, and during the third quarter of 2012 the Tenth CircuitCourt of Appeals affirmed the summary judgment. The individualplaintiffs will all have to decide during the first quarter of2013 whether or not to pursue individual age discriminationclaims.

The second action, initiated in 2007, alleges collectivebargaining agreement breaches and ERISA violations in connectionwith alleged failures to provide benefits to certain formeremployees of the Wichita facility. Written discovery closed byjoint stipulation of the parties on June 6, 2011. Depositionsconcluded on August 18, 2011. Briefing of Boeing's andPlaintiffs' respective summary judgment motions was completed onJune 4, 2012. On December 11, 2012, the court denied plaintiffs'motion for summary judgment and granted Boeing's motion forsummary judgment on plaintiffs' claim that amendment of The BoeingCompany Employee Retirement Plan violated The InternationalAssociation of Machinists and Aerospace Workers (IAM) collectivebargaining agreement, as well as individual ERISA Section 510claims for interference with benefits. The court denied Boeing'smotion for all other claims. Spirit has agreed to indemnifyBoeing for any and all losses in the first action, with theexception of claims arising from employment actions prior toJanuary 1, 2005.

While Spirit has acknowledged a limited indemnification obligationin the second action, the Company believes that Spirit isobligated to indemnify Boeing for any and all losses in the secondaction. The Company cannot reasonably estimate the range of loss,if any, that may result from these matters given the currentprocedural status of the litigation.

CANADA: Disabled Veterans Challenge Class Action Attorney Fees--------------------------------------------------------------Alison Auld, writing for The Winnipeg Free Press, reports thatfederal lawyers argued on Feb. 15 that attorneys who won a class-action lawsuit for disabled veterans shouldn't get C$66.6 millionin fees despite criticism from the former military members thatOttawa alone caused the case to drag through the courts.

Dozens of veterans and their spouses listened to final argumentsin Federal Court on the proposed C$887.8-million settlementbetween the former military members and the federal governmentover their clawed-back pension benefits.

Judge Robert Barnes reserved his decision on whether to approvethe deal, which was reached last month after a five-year legalfight.

The Crown argued the three lawyers who took on the case on behalfof 7,500 veterans were charging 21 times the normal hourly ratefor their services over five years.

But one veteran dismissed the claim, saying the federal governmentchallenged the case every step of the way and rejected repeatedattempts to settle it without going to court.

"The federal government took our money from us and now they'retrying to tell us how to spend our money," Steve Dornan, who haspost-traumatic stress disorder and incurable cancer, said outsidethe hearing room.

"So, you didn't want us to have the money in the first place. Nowyou're telling us that we're spending too much on our lawyers thatgot us the money. It's ridiculous."

Dennis Manuge launched the lawsuit in 2007 on behalf of himselfand other disabled Canadian veterans whose long-term disabilitybenefits were reduced by the amount of the monthly VeteransAffairs disability pensions they received.

The federal government fought the initial class-actioncertification, appealed a certification decision in 2008 anddidn't alter the clawback after it was condemned by the militaryombudsman, the Senate and through a motion in the House of Commonsthat said the offset should end.

The Federal Court ultimately ruled last spring it was unfair ofthe federal government to treat pain-and-suffering awards asincome.

Defence Minister Peter MacKay said the government wouldn't appealand appointed a negotiator to cut a deal.

The legal fees became a contentious issue last week after MacKaycalled them "grossly excessive," which Crown attorney Paul Vickeryrestated on the last day of the two-day hearing.

Mr. Vickery said the three principal lawyers handling theveterans' case logged about 8,600 hours and the hourly rate forone of them amounted to about C$13,400.

"This fee request is plainly excessive and should not beapproved," he said.

He argued in other large class-action lawsuits, such as the $4-billion native residential school and C$2-billion tainted-bloodsettlements, lawyers were paid a far lower rate.

The settlement of the class-action suit in residential schoolscould see as much as C$85 million to C$100 million paid tolawyers, while the tainted-blood scandal saw a C$52-million legalbill.

Ward Branch, a lawyer for the veterans, said the law firmvoluntarily reduced its fee to 7.5 per cent of the total award,down from the original contract amount of 30 per cent.

"What made me comfortable about what we were requesting is thatthe class was behind us," Mr. Branch said.

Several veterans said at the hearing the deal should includedamages and arrangements should be made to prevent them fromhaving to pay higher taxes after receiving their retroactivepayments under the deal.

The deal includes C$424.3 million in retroactive pay to veteransand dates back to 1976.

"We saw overwhelming support from the class and they stood behindus here."

CANADIAN IMPERIAL: Delaware Vice Chancellor Approves Settlement---------------------------------------------------------------The Litigation Daily reports that Delaware Vice Chancellor J.Travis Laster has approved a $13.25 million settlement of a classaction filed over a fund created by Canadian Imperial Bank ofCommerce. Mr. Laster refused to let objecting investors take overthe case and try to get a better deal. The objectors had followeda novel "topping" proposal suggested by Mr. Laster, but the judgerejected the deal because of the involvement of a litigationfinancing firm.

CARLYLE GMS: Awaits Court Decision in "Detroit" Class Suit----------------------------------------------------------Carlyle GMS Finance, Inc. is awaiting a court decision in theclass action lawsuit pending in Massachusetts, according to theCompany's February 11, 2013, Form 10-12G filing with the U.S.Securities and Exchange Commission.

On February 14, 2008, a private class-action lawsuit challenging"club" bids and other alleged anti-competitive business practiceswas filed in the U.S. District Court for the District ofMassachusetts (Police and Fire Retirement System of the City ofDetroit v. Apollo Global Management, LLC). The complaint alleges,among other things, that certain global alternative asset firms,including Carlyle, violated Section 1 of the Sherman Act byforming multi-sponsor consortiums for the purpose of biddingcollectively in company buyout auctions in certain going privatetransactions, which the plaintiffs allege constitutes a"conspiracy in restraint of trade." The plaintiffs seek damagesas provided for in Section 4 of the Clayton Act and injunctionagainst such conduct in restraint of trade in the future.Arguments on summary judgment of these claims were held inDecember 2012.

CARLYLE GMS: Awaits Rulings in Suits Pending in D.C. and N.Y.-------------------------------------------------------------Carlyle GMS Finance, Inc. is awaiting court decisions onplaintiffs' motions for leave to amend complaint in the classaction lawsuits pending in the District of Columbia and New York,according to the Company's February 11, 2013, Form 10-12G filingwith the U.S. Securities and Exchange Commission.

Carlyle Capital Corporation Limited ("CCC") was a fund sponsoredby Carlyle that invested in AAA-rated residential mortgage backedsecurities on a highly leveraged basis. In March of 2008, amidstturmoil throughout the mortgage markets and money markets, CCCfiled for insolvency protection in Guernsey. Several differentlawsuits, including a class action lawsuit, developed from the CCCinsolvency.

On June 21, 2011, August 24, 2011, and September 1, 2011, threeputative shareholder class actions were filed against Carlyle,certain of its affiliates and former directors of CCC allegingthat the fund offering materials and various public disclosureswere materially misleading or omitted material information. Twoof the shareholder class actions, (Phelps v. Stomber, et al. andGlaubach v. Carlyle Capital Corporation Limited, et al.), werefiled in the United States District Court for the District ofColumbia. Phelps v. Stomber, et al. was also filed in the SupremeCourt of New York, New York County, and was subsequently removedto the United States District Court for the Southern District ofNew York. The two original D.C. cases were consolidated into onecase, under the caption of Phelps v. Stomber, and the Phelps namedplaintiffs were designated "lead plaintiffs" by the court. TheNew York case was transferred to the D.C. federal court and theplaintiffs requested that it be consolidated with the other twoD.C. actions. The plaintiffs were seeking all compensatorydamages sustained as a result of the alleged misrepresentations,costs and expenses, as well as reasonable attorney's fees.

On August 13, 2012, the United States District Court for theDistrict of Columbia dismissed both the D.C. and New York classactions. The plaintiffs have moved for leave to amend theircomplaint and/or for amendment of the Court's decision, and thedefendants have opposed these motions. The plaintiffs also havenoticed an appeal to the Court of Appeals for the District ofColumbia Circuit, but the appeal is being held in abeyance untilthe District Court resolves pending motions.

DEWEY & LEBOEUF: Loses Bid to Dismiss Ex-Workers' Class Action--------------------------------------------------------------Sara Randazzo, writing for The Am Law Daily, reports that theDewey & LeBoeuf estate has failed in its effort to squelch aproposed class action that claims the firm gave 550 employeesinadequate notice before terminating them weeks before filing forChapter 11 protection on May 28, 2012.

In a ruling issued on Feb. 11, U.S. Bankruptcy Judge Martin Glenndenied the Dewey estate's motion to dismiss the suit, which seeks60 days of wages and benefits for those affected by the layoffs.Vittoria Conn, a former Dewey staff member employed in the firm'sdocuments department, filed the suit in New York federal courtMay 10, 2012 -- three days after she was terminated and about twoweeks before the firm filed for bankruptcy. The suit, which isbased on state and federal laws related to the federal WorkerAdjustment and Retraining Notification, or WARN, Act, wastransferred to bankruptcy court on May 29 as a so-called adversaryproceeding.

In allowing the case to continue, Judge Glenn disagreed with thetwo primary arguments offered by lawyers for the Dewey estate:that the former employees' grievances should be brought as part ofthe regular bankruptcy claims process rather than as an adversaryproceeding, and that there is no basis for a WARN suit to qualifyas a class action.

Judge Glenn also chided Dewey's lawyers for raising issues hedeemed irrelevant in a motion to dismiss, including the estate'sposition that the firm was not required to comply with the WARNAct because it was no longer operating as a viable business at thetime it laid off the workers in question. "While the Debtor mayultimately prevail on the liquidating fiduciary affirmativedefense, or some other defense, the defenses are not establishedas a matter of law from the four corners of the Complaint," JudgeGlenn wrote.

Judge Glenn did not rule on whether the case should proceed as aclass action. That issue, he said, would be considered at ahearing scheduled for March 28.

Outside of New York, WARN-related class actions have advanced inat least two other law firm bankruptcies. Employees terminated byHeller Ehrman, which filed for bankruptcy in San Francisco in2008, received between 24 and 33 cents on the dollar for $13.2million in WARN Act and other claims. Former Howrey employeeslaid off prior to that firm's 2011 dissolution recently receivedthe go-ahead from San Francisco U.S. Bankruptcy Judge DennisMontali to proceed with a WARN class action of their own.

Ms. Conn's attorneys at Outten & Golden -- who were passed over ascounsel in the Howrey suit in favor of Los Angeles firm BlumCollins -- did not immediately respond to a request for comment onFeb. 12 on Judge Glenn's ruling in the Dewey suit.

A spokeswoman for the Dewey estate declined to comment.

In denying the motion to dismiss, Judge Glenn also chose not torule on the plaintiffs' argument that their claims should be giveneither administrative expense or wage priority status. He wrotethat such a determination can only be made in the context ofDewey's bankruptcy and not in an adversary case.

Dewey's advisers are in the process of winning creditor approvalfor a Chapter 11 plan that, once confirmed, would put the case inthe hands of two liquidating trustees tasked with maximizing thedefunct firm's remaining assets. A hearing at which Judge Glennwill consider that plan is scheduled for February 27.

DIRECTSAT USA: Ruling May Pave for Stricter Certification Rules---------------------------------------------------------------According to an article by Laurent Badoux, Esq. --lbadoux@littler.com -- Adam Wit, Esq. -- awit@littler.com -- JamesOh, Esq. -- joh@littler.com -- and Kathryn Siegel, Esq. --ksiegel@littler.com -- of Littler Mendelson, available at MondaqNews Alerts, in a decision that may significantly impactcertification and decertification decisions in FLSA collectiveactions, a three-judge panel of the Seventh Circuit Court ofAppeals upheld the decertification of a Rule 23 class and FLSAcollective action, essentially applying the standards set forth bythe U.S. Supreme Court in Dukes v. Wal-Mart to an FLSA collectiveaction.

In Espenscheid v. DirectSat USA, 2013 U.S. App. LEXIS 2409 (7thCir. Feb. 4, 2013), Judge Posner, writing for the panel, expresslystated that "despite the difference between a collective actionand a class action and the absence from the collective-actionsection of the Fair Labor Standards Act the kind of detailedprocedural provisions found in Rule 23, there isn't a good reasonto have different standards for the certification of the twodifferent types of action. . . ." Noting that simplification isfavored in the law and that one of the intentions of both FLSAcollective actions and Rule 23 class actions is to promoteefficiency, the court concluded that "we can, with no distortionin our analysis, treat the entire set of suits before us as if itwere a single class action."

Thus, in deciding the propriety of class treatment for both theRule 23 and FLSA claims, without specifically citing Dukes, theSeventh Circuit adopted the Supreme Court's rejection of "trial byformula" in class actions seeking back pay awards. As in Dukes,the Seventh Circuit rejected a "formulaic" approach and concludedthat determining damages would require separate evidentiaryhearings for each of the 2,341 putative class members, which wouldoverwhelm the district court. The court also rejected plaintiffs'proposal that testimony at trial from 42 "representative" membersof the class would suffice to establish liability and damages: "Toextrapolate from the experience of the 42 to that of the 2,341would require that all 2,341 have done roughly the same amount ofwork, including the same amount of overtime work, and had beenpaid the same wage." In the absence of a feasible method oftrying a class action with so many variances in each employee'ssituation, the court concluded, class treatment was inappropriate.

This decision is particularly significant in light of theincreasingly high volume of FLSA collective actions filed infederal court each year (2,507 in 2012, which constituted an 8%increase from 2011 and over 90% of all employment class actionfiled), and the lenient standard typically applied to conditionalcertification of FLSA collective actions, in contrast to the morestringent standards applied to Rule 23 class actions.

Background

Espenscheid was filed on behalf of 2,341 installation technicianswho were paid on a piece-rate basis, rather than a fixed hourlywage, asserting overtime claims under the FLSA and three statewage laws. In 2010, the district court had conditionallycertified a class under the FLSA and three state law subclassesunder Rule 23. As the case proceeded towards trial, however, thedistrict court judge became concerned about the manageability ofthe case at trial and asked the plaintiffs to address theseconcerns in their trial plans. The plaintiffs proposed to have 42"representative" technicians testify as representatives for thesubclasses. The plaintiffs envisioned that after hearing thetestimony of the 42 "representative class members" the jury wouldcalculate the "average" number of uncompensated hours in each workweek, and the parties would then use the jury's averages todetermine the damages owed. The district court judge found theplaintiffs' proposal unfeasible and determined that the case couldnot proceed as a class, concluding that "were the jury to rule inplaintiffs' favor under its proposed plan, the jury would have todo so on the basis of proof that is not representative of thewhole class, and defendants would be deprived of an opportunity toassert their individualized defenses . . . ." The case wasdecertified and the plaintiffs appealed.

The Seventh Circuit's Decision

The Seventh Circuit panel affirmed decertification, agreeing thatthe plan proffered by the plaintiffs was unfeasible. "There wouldbe no problem," the court noted, "had the plaintiffs been seekingjust injunctive or declaratory relief, because then the only issuewould have been whether DirectSat had acted unlawfully." A"mechanical" calculation of damages was not possible in thesituation presented because no formula could capture the variancesbetween the class members. The technicians were paid on a piece-rate, with some working more efficiently than others, so thatwhile some may have worked more than 40 hours per week, others mayhave worked fewer hours than that. Moreover, differenttechnicians performed different tasks, which may have requireddifferent amounts of time.

The Seventh Circuit agreed with the district court that"representative" testimony was not an acceptable alternative toindividualized damages hearings because the plaintiffs failed topresent any evidence that the representative class members were infact "representative:"

"The plaintiffs proposed to get around the problem of variance bypresenting testimony at trial from 42 'representative' members ofthe class. Class counsel has not explained in his briefs, and wasunable to explain to us at the oral argument though pressedrepeatedly, how these 'representatives' were chosen -- whether forexample they were volunteers, or perhaps selected by class counselafter extensive interviews and hand-picked to magnify the damagessought by the class. There is no suggestion that sampling methodsused in statistical analysis were employed to create a randomsample of class members to be the witnesses, or more preciselyrandom samples, each one composed of victims of a particular typeof alleged violation. And even if the 42, though not a randomsample, turned out by pure happenstance to be representative inthe sense that the number of hours they worked per week on averagewhen they should have been paid (or paid more) but were not wasequal to the average number of hours of the entire class, thiswould not enable the damages of any members of the class otherthan the 42 to be calculated. To extrapolate from the experienceof the 42 to that of the 2341 would require that all 2341 havedone roughly the same amount of work, including the same amount ofovertime work, and had been paid the same wage . . . . No onethinks there was such uniformity.

The Seventh Circuit concluded that "if class counsel is incapableof proposing a feasible litigation plan though asked to do so, thejudge's duty is at an end." Noting that plaintiffs' counsellikely believed that if the class was certified the employer wouldsettle and thus a trial would be avoided, the court emphasizedthat "class counsel cannot be permitted to force settlement byrefusing to agree to a reasonable method of trial shouldsettlement negotiations fail. Essentially they asked the districtjudge to embark on a shapeless, free-wheeling trial that wouldcombine liability and damages and would be virtually evidence-freeso far as damages were concerned."

Significantly, the Seventh Circuit also noted that there is a"promising alternative to class action treatment" that theplaintiffs had seemingly ignored. The plaintiffs could have, thecourt stated, complained directly to the U.S. Department of Labor(DOL) and obtained monetary relief through that avenue, if theyhad not been properly paid. Pointing to a report by Littlerattorney Laurent Badoux,1 Judge Posner pointed out that the DOLcollected $225 million in back wages for employees in 2011, andnoted the DOL's ability to supplement employee testimony with theresults of its own investigation of employers.

Littler is presenting similar arguments in a mandamus petitionpending in the Fifth Circuit, and will continue to monitordevelopments in this fast-changing area of the law. It will beparticularly important to note whether other courts follow thelead of the Seventh Circuit and begin to apply similarcertification standards to FLSA collective actions as they do toRule 23 class actions.

Littler Mendelson -- http://www.littler.com-- is the largest law firm in the United States exclusively devoted to representingmanagement in employment, employee benefits and labor law matters.

EI DU PONT: To Replace Trees as Part of Herbicide Settlement------------------------------------------------------------Saranac Hale Spencer, writing for The Legal Intelligencer, reportsthat DuPont has agreed to replace tens of thousands of treeskilled by its herbicide, Imprelis, across the country as part of asettlement agreement that got preliminary approval from a federaljudge this month.

The settlement, filed in October 2012, was the product of monthsof discussion and mediation from a retired magistrate judge,according to the opinion.

"The settlement program appears to reflect a meaningful attempt tomake property owners quite close to whole for the damage caused tothem," said U.S. District Judge Gene E.K. Pratter of the EasternDistrict of Pennsylvania.

DuPont started selling Imprelis, an herbicide that was designed tokill only selected weeds without hurting other vegetation, in fall2010. Soon after, there came reports of unintended damage toplants, which led to an investigation by the EnvironmentalProtection Agency and thousands of lawsuits.

In October 2011, the Judicial Panel on Multidistrict Litigationconsolidated more than 40 cases brought in 18 districts againstDuPont.

The settlement splits the plaintiffs into three classes: propertyowners; applicators, people who applied Imprelis to others'property; and golf courses and other self-applicators. Propertyowners and self-applicators will get replacement trees for theones that died and DuPont will pay for the removal of damagedtrees. They will also get tree care and maintenance payments andadditional compensation for incidental damage that will be 15percent of the total value of what the class member is gettingunder the terms of the settlement, according to the opinion.

Members of the self-applicator class will also get reimbursementfor the time and expense of investigating and documenting damagefrom Imprelis, with a $2,000 cap on those claims, according to theopinion.

The applicator class will be paid for "customer site visits, fieldwork, and other such expenses," Judge Pratter said. Participationin the settlement won't bar members of the class from makingclaims for lost profits or for damages that may come from suitsbrought against them by third parties, she said.

DuPont is set to pay for expenses in administering the notice andclaims as well as attorney fees for the plaintiffs, not to exceed$6.5 million and $500,000 in costs.

Robert Kitchenoff -- kitchenoff@wka-law.com -- of WeinsteinKitchenoff & Asher in Philadelphia, liaison counsel for theplaintiffs, called the settlement a "great deal for the classmembers." DuPont's attorneys could not be reached for comment.

FACEBOOK INC: Judge Outlines Reasons for Dismissing IPO Suit------------------------------------------------------------The Litigation Daily reports that a New York federal judge filled70 pages on Feb. 13 listing his reasons for throwing outshareholder derivative claims over Facebook's much-maligned IPO,and in a brief passage also reached a series of conclusions thatcould cast a pall over the entire IPO litigation -- including themuch larger securities class action portion of the case.

GLOBECOMM SYSTEMS: "Wenz" Shareholder Suit Discontinued in Nov.---------------------------------------------------------------Harvey and Joan Wenz voluntarily discontinued in November 2012their class action lawsuit against Globecomm Systems Inc.,according to the Company's February 11, 2013, Form 10-Q filingwith the U.S. Securities and Exchange Commission for the quarterended December 31, 2012.

On October 11, 2012, Harvey Wenz filed a purported shareholderclass action complaint in New York State Supreme Court, SuffolkCounty, captioned Wenz v. Globecomm Systems Inc., et al., IndexNo. 031747/2012 (N.Y. Sup. Ct. Suffolk County), seeking to enjointhe annual shareholder meeting of the Company scheduled forNovember 15, 2012, until the Company made certain additionaldisclosures. On October 22, 2012, the complaint was amended toadd as a plaintiff Joan Wenz, another purported shareholder of theCompany. Plaintiffs alleged that the Directors of the Companybreached their fiduciary duties by failing to disclose in theCompany's October 5, 2012 Definitive Proxy Statement certaininformation concerning proposals in the Proxy to (i) amend the2006 Stock Incentive Plan, and (ii) provide stockholders with anon-binding, advisory vote on the Company's compensation programfor its named executives. The lawsuit also alleged that theCompany aided and abetted these alleged breaches of fiduciaryduty. In addition to an injunction, plaintiffs sought unspecifieddamages and attorneys' fees. On November 2, 2012, plaintiffsmoved by order to show cause for a preliminary injunctionenjoining the November 15, 2012 shareholder vote as the twoproposals. The court denied plaintiffs' motion for a preliminaryinjunction on November 14, 2012. On November 29, 2012, plaintiffsvoluntarily discontinued the action with prejudice as tothemselves and without prejudice as to all other Globecommshareholders.

First comes the request for explicit photos from a trustedboyfriend. Then, after the relationship goes bad, the publicposting of the pictures on so-called "revenge porn" sites, oftenaccompanied by personal information and shaming comments fromstrangers.

Once publicized on the Internet, of course, there is little, ifany, chance that the photos can ever be entirely eliminated frompublic view. So 17 women who say they suffered such a humiliatinginvasion of their privacy have tried a different remedy, suing theWeb site and Web hosting organization that they claim areresponsible for facilitating the conduct. In a lawsuit filed lastmonth in state district court in Orange County, Texas, the group,led by Hollie Toups, 32, seeks damages against GoDaddy.com andTexxxan.com for monetary damages, according to a lengthy SanFrancisco Chronicle article and USA Today.

They are unlikely to prevail against Go Daddy, since theCommunications Decency Act of 1996 protects Web hosts fromliability for third-party content, experts tells the newspapers.And even the case against the site itself could well be a loser.

In an e-mail to the Chronicle using a pseudonym, an owner ofTexxan.com called the suit "completely bogus" and said one'sexpectation of privacy is reduced or eliminated by sending nude orsemi-nude photographs to others.

Go Daddy does not comment on pending litigation, a representativetold USA Today.

Nonetheless, it appears that a winning argument might be made fora cutting-edge reassessment of the current understanding of theparameters of relevant law, based on what assistant professor MaryAnne Franks of the University of Miami points out is harassmentdirected almost exclusively at women. "It's an incredibly uglystatement about society when you put that in a larger context ofdiscrimination and power," she tells the Chronicle.

Not every woman who is featured on such sites voluntarily providedphotos to others. Lead plaintiff Toups says her photos, some ofwhich were to document weight loss, never left her possession.

And the damages go beyond mere humiliation. One of theplaintiffs, Marianna Taschinger, 22, tells the newspaper she isworried about her personal safety.

"Normal people don't subscribe to sites like this," she says."Only creeps. Knowing that those are the kinds of people who knowwhere I live . . . I never feel safe."

HAIN CELESTIAL: Hearing in "Morrison" Suit Set for March 7----------------------------------------------------------A hearing on the parties' pending motions in the class actionlawsuit styled Morrison and Kist. v. The Hain Celestial Group,Inc. et al., is currently scheduled for March 7, 2013, accordingto the Company's February 11, 2013, Form 10-Q filing with the U.S.Securities and Exchange Commission for the quarter endedDecember 31, 2012.

On October 11, 2012, a putative class action lawsuit, titledMorrison and Kist. v. The Hain Celestial Group, Inc. et al, wasfiled against the Company and each of its directors in the SupremeCourt of the State of New York, County of Nassau. Plaintiffsalleged that the board of directors breached its fiduciary dutiesin respect of the proxy statement disclosure relating to theproposals for the advisory vote regarding executive compensationand the amendment to the Amended and Restated 2002 Long TermIncentive and Stock Award Plan. The complaint sought injunctiverelief and damages. On November 14, 2012, the court deniedplaintiffs' motion for a temporary restraining order relating tothe Company's Annual Meeting of Stockholders, finding thatplaintiffs failed to establish that the allegedly non-disclosedinformation was material and that plaintiffs could not show anyirreparable harm.

On December 12, 2012, plaintiffs moved to amend their complaintand, on January 15, 2013, the Company and the directors moved todismiss the lawsuit. A hearing on the parties' motions iscurrently scheduled for March 7, 2013.

HALLIBURTON CO: Continues to Defend Suit Over Duncan Facility-------------------------------------------------------------Halliburton Company continues to defend itself against a classaction lawsuit relating to the Company's Duncan, Oklahomafacility, according to the Company's February 11, 2013, Form 10-Kfiling with the U.S. Securities and Exchange Commission for theyear ended December 31, 2012.

Commencing in October 2011, a number of lawsuits were filedagainst the Company, including a putative class action case infederal court in the Western District of Oklahoma and otherlawsuits filed in Oklahoma state courts. The lawsuits generallyallege, among other things, that operations at the Company'sDuncan facility caused releases of pollutants, including ammoniumperchlorate and, in the case of the federal lawsuit, nuclear orradioactive waste, into the groundwater, and that the Company knewabout those releases and did not take corrective actions toaddress them. It is also alleged that the plaintiffs havesuffered from certain health conditions, including hypothyroidism,a condition that has been associated with exposure to perchlorateat sufficiently high doses over time. These cases seek, amongother things, damages, including punitive damages, and theestablishment of a fund for future medical monitoring. The casesallege, among other things, strict liability, trespass, privatenuisance, public nuisance, and negligence and, in the case of thefederal lawsuit, violations of the U.S. Resource Conservation andRecovery Act (RCRA), resulting in personal injuries, propertydamage, and diminution of property value.

The lawsuits generally allege that the cleaning of the missilecasings at the Duncan facility contaminated the surrounding soilsand groundwater, including certain water wells used in a number ofresidential homes, through the migration of, among other things,ammonium perchlorate. The federal lawsuit also alleges that theCompany's processing of radioactive waste from a nuclear powerplant over 25 years ago resulted in the release of"nuclear/radioactive" waste into the environment. In April 2012,the judge in the federal lawsuit dismissed the plaintiffs' RCRAclaim. The other claims brought in that lawsuit remain pending.

To date, soil and groundwater sampling relating to the allegationshas confirmed that the alleged nuclear or radioactive material isconfined to the soil in a discrete area of the onsite operationsand is not presently believed to be in the groundwater onsite orin any areas offsite. The radiological impacts from this discretearea are not believed to present any health risk for offsiteexposure. With respect to ammonium perchlorate, the Company hasmade arrangements to supply affected residents with bottleddrinking water and, if needed, with access to temporary publicwater supply lines, at no cost to the residents. The Company hasworked with the City of Duncan and the Oklahoma Department ofEnvironmental Quality (DEQ) to expedite expansion of the citywater supply to the relevant areas at the Company's expense.

The Company says the lawsuits are at an early stage, andadditional lawsuits and proceedings may be brought against theCompany. The Company cannot predict their outcome or theconsequences thereof. As of December 31, 2012, the Company hadaccrued $25 million related to its initial estimate of responseefforts, third-party property damage, and remediation related tothe Duncan, Oklahoma matter. The Company intends to vigorouslydefend the lawsuits and does not believe that these lawsuits willhave a material adverse effect on its liquidity, consolidatedresults of operations, or consolidated financial condition.

Additionally, the Company has subsidiaries that have been named aspotentially responsible parties along with other third parties fornine federal and state superfund sites for which the Company hasestablished reserves. As of December 31, 2012, those nine sitesaccounted for approximately $6 million of the Company's $72million total environmental reserve. Despite attempts to resolvethese superfund matters, the relevant regulatory agency may at anytime bring a lawsuit against the Company for amounts in excess ofthe amount accrued. With respect to some superfund sites, theCompany has been named a potentially responsible party by aregulatory agency; however, in each of those cases, the Companydoes not believe it has any material liability. The Company alsocould be subject to third-party claims with respect toenvironmental matters for which it has been named as a potentiallyresponsible party.

HALLIBURTON CO: First Phase in Macondo MDL Trial to Start Feb. 25-----------------------------------------------------------------The first phase of the trial in the multidistrict litigationover the Macondo well incident is scheduled to occur beginningFebruary 25, 2013, according to Halliburton Company'sFebruary 11 Form 10-K filing with the U.S. Securities and ExchangeCommission for the year ended December 31, 2012.

The semisubmersible drilling rig, Deepwater Horizon, sank on April22, 2010, after an explosion and fire onboard the rig that beganon April 20, 2010. The Deepwater Horizon was owned by TransoceanLtd. and had been drilling the Macondo exploration well inMississippi Canyon Block 252 in the Gulf of Mexico for the leaseoperator, BP Exploration & Production, Inc. (BP Exploration), anindirect wholly owned subsidiary of BP p.l.c. (BP p.l.c., BPExploration, and their affiliates, collectively, BP). There wereeleven fatalities and a number of injuries as a result of theMacondo well incident. Crude oil escaping from the Macondo wellsite spread across thousands of square miles of the Gulf of Mexicoand reached the United States Gulf Coast. The Company performed avariety of services for BP Exploration, including cementing, mudlogging, directional drilling, measurement-while-drilling, and rigdata acquisition services.

Since April 21, 2010, plaintiffs have been filing lawsuitsrelating to the Macondo well incident. Generally, those lawsuitsallege either (1) damages arising from the oil spill pollution andcontamination (e.g., diminution of property value, lost taxrevenue, lost business revenue, lost tourist dollars, inability toengage in recreational or commercial activities), or (2) wrongfuldeath or personal injuries. The Company is named along with otherunaffiliated defendants in more than 400 complaints, most of whichare alleged class actions, involving pollution damage claims andat least seven personal injury lawsuits involving four decedentsand at least 10 allegedly injured persons who were on the drillingrig at the time of the incident. At least six additional lawsuitsnaming the Company and others relate to alleged personal injuriessustained by those responding to the explosion and oil spill.Plaintiffs originally filed the lawsuits in federal and statecourts throughout the United States. Except for certain lawsuitsnot yet consolidated, the Judicial Panel on Multi-DistrictLitigation ordered all of the lawsuits against the Companyconsolidated in the MDL proceeding before Judge Carl Barbier inthe United States Eastern District of Louisiana. The pollutioncomplaints generally allege, among other things, negligence andgross negligence, property damages, taking of protected species,and potential economic losses as a result of environmentalpollution and generally seek awards of unspecified economic,compensatory, and punitive damages, as well as injunctive relief.Plaintiffs in these pollution cases have brought lawsuit undervarious legal provisions, including The Oil Pollution Act of 1990(OPA), The Clean Water Act (CWA), The Migratory Bird Treaty Act of1918 (MBTA), the Endangered Species Act of 1973 (ESA), the OuterContinental Shelf Land (OCSLA), the Longshoremen and HarborWorkers Compensation Act, general maritime law, state common law,and various state environmental and products liability statutes.

Furthermore, the pollution complaints include lawsuits broughtagainst the Company by governmental entities, including the Stateof Alabama, the State of Louisiana, Plaquemines Parish, the Cityof Greenville, and three Mexican states. Complaints broughtagainst the Company by at least seven other parishes in Louisianawere dismissed with prejudice, and the dismissal is being appealedby those parishes. The wrongful death and other personal injurycomplaints generally allege negligence and gross negligence andseek awards of compensatory damages, including unspecifiedeconomic damages, and punitive damages. The Company has retainedcounsel and its investigating and evaluating the claims, thetheories of recovery, damages asserted, and the Company'srespective defenses to all of these claims.

Judge Barbier is also presiding over a separate proceeding filedby Transocean under the Limitation of Liability Act (LimitationAction). In the Limitation Action, Transocean seeks to limit itsliability for claims arising out of the Macondo well incident tothe value of the rig and its freight. While the Limitation Actionhas been formally consolidated into the MDL, the court isnonetheless, in some respects, treating the Limitation Action asan associated but separate proceeding. In February 2011,Transocean tendered the Company, along with all other defendants,into the Limitation Action. As a result of the tender, theCompany and all other defendants will be treated as directdefendants to the plaintiffs' claims as if the plaintiffs had suedthe Company and the other defendants directly. In the LimitationAction, the judge intends to determine the allocation of liabilityamong all defendants in the hundreds of lawsuits associated withthe Macondo well incident, including those in the MDL proceedingthat are pending in his court. Specifically, the Company believesthe judge will determine the liability, limitation, exoneration,and fault allocation with regard to all of the defendants in atrial, which is scheduled to occur in at least two phasesbeginning on February 25, 2013. The first phase of this portionof the trial is scheduled to cover issues arising out of theconduct and degree of culpability of various parties allegedlyrelevant to the loss of well control, the ensuing fire andexplosion on and sinking of the Deepwater Horizon, and theinitiation of the release of hydrocarbons from the Macondo well.The MDL court has projected September 2013 for the beginning ofthe second phase of this portion of the trial, which is scheduledto cover actions relating to attempts to control the flow ofhydrocarbons from the well and the quantification of hydrocarbonsdischarged from the well. Subsequent proceedings would be held tothe extent triable issues remain unsolved by the first two phasesof the trial, settlements, motion practice, or stipulation. Whilethe Department of Justice (DOJ) will participate in the first twophases of the trial with regard to BP's conduct and the amount ofhydrocarbons discharged from the well, it is anticipated that theDOJ's civil action for the CWA and OPA violations, fines, andpenalties will be addressed by the court in a subsequentproceeding. The Company does not believe that a singleapportionment of liability in the Limitation Action is properlyapplied, particularly with respect to gross negligence andpunitive damages, to the hundreds of lawsuits pending in the MDLproceeding.

Damages for the cases tried in the MDL proceeding, includingpunitive damages, are expected to be tried following the twophases of the trial. Under ordinary MDL procedures, such caseswould, unless waived by the respective parties, be tried in thecourts from which they were transferred into the MDL. It remainsunclear, however, what impact the overlay of the Limitation Actionwill have on where these matters are tried. Document discoveryand depositions among the parties to the MDL are ongoing.

In April and May 2011, certain defendants in the proceedings filednumerous cross claims and third party claims against certain otherdefendants. BP Exploration and BP America Production Companyfiled claims against the Company seeking subrogation,contribution, including with respect to liabilities under the OPA,and direct damages, and alleging negligence, gross negligence,fraudulent conduct, and fraudulent concealment. Transocean filedclaims against the Company seeking indemnification, andsubrogation and contribution, including with respect toliabilities under the OPA and for the total loss of the DeepwaterHorizon, and alleging comparative fault and breach of warranty ofworkmanlike performance. Anadarko Petroleum Corporation andAnadarko E&P Company LP (together, Anadarko), filed claims againstthe Company seeking tort indemnity and contribution, and allegingnegligence, gross negligence and willful misconduct, and MOEXOffshore 2007 LLC (MOEX), who had an approximate 10% interest inthe Macondo well at the time of the incident, filed a claimagainst the Company alleging negligence. Cameron InternationalCorporation (Cameron) (the manufacturer and designer of theblowout preventer), M-I Swaco (provider of drilling fluids andservices, among other things), Weatherford U.S. L.P. andWeatherford International, Inc. (together, Weatherford) (providersof casing components, including float equipment and centralizers,and services), and Dril-Quip, Inc. (Dril-Quip) (provider ofwellhead systems), each filed claims against the Company seekingindemnification and contribution, including with respect toliabilities under the OPA in the case of Cameron, and allegingnegligence. Additional civil lawsuits may be filed against theCompany. In addition to the claims against the Company, generallythe defendants in the proceedings filed claims, including forliabilities under the OPA and other similar claims, against theother defendants. BP has since announced that it has settledthose claims between it and each of MOEX, Weatherford, Anadarko,and Cameron. Also, BP and M-I Swaco have dismissed all claimsbetween them.

In April 2011, the Company filed claims against BP Exploration, BPp.l.c. and BP America Production Company (BP Defendants), M-ISwaco, Cameron, Anadarko, MOEX, Weatherford, Dril-Quip, andnumerous entities involved in the post-blowout remediation andresponse efforts, in each case seeking contribution andindemnification and alleging negligence. The Company's claimsalso alleged gross negligence and willful misconduct on the partof the BP Defendants, Anadarko, and Weatherford. The Company alsofiled claims against M-I Swaco and Weatherford for contractualindemnification, and against Cameron, Weatherford and Dril-Quipfor strict products liability, although the court has since issuedorders dismissing all claims asserted against Dril-Quip andWeatherford in the MDL and the Company has dismissed itscontractual indemnification claim against M-I Swaco. The Companyfiled its answer to Transocean's Limitation petition denyingTransocean's right to limit its liability, denying all claims andresponsibility for the incident, seeking contribution andindemnification, and alleging negligence and gross negligence.

Judge Barbier has issued an order, among others, clarifyingcertain aspects of law applicable to the lawsuits pending in hiscourt. The court ruled that: (1) general maritime law will applyand therefore dismissed all claims brought under state law causesof action; (2) general maritime law claims may be brought directlyagainst defendants who are non-"responsible parties" under the OPAwith the exception of pure economic loss claims by plaintiffsother than commercial fishermen; (3) all claims for damages,including pure economic loss claims, may be brought under the OPAdirectly against responsible parties; and (4) punitive damageclaims can be brought against both responsible and non-responsibleparties under general maritime law. With respect to the rulingthat claims for damages may be brought under the OPA againstresponsible parties, the Company has not been named as aresponsible party under the OPA, but BP Exploration has filed aclaim against the Company for contribution with respect toliabilities incurred by BP Exploration under the OPA.

In September 2011, the Company filed claims in Harris County,Texas, against the BP Defendants seeking damages, including lostprofits and exemplary damages, and alleging negligence, grosslynegligent misrepresentation, defamation, common law libel,slander, and business disparagement. The Company's claims allegethat the BP Defendants knew or should have known about anadditional hydrocarbon zone in the well that the BP Defendantsfailed to disclose to the Company prior to its designing thecement program for the Macondo well. The location of thehydrocarbon zones is critical information required prior toperforming cementing services and is necessary to achieve desiredcement placement. The Company believes that had the BP Defendantsdisclosed the hydrocarbon zone to it, the Company would not haveproceeded with the cement program unless it was redesigned, whichlikely would have required a redesign of the production casing.In addition, the Company believes that the BP Defendants withheldthis information from the report of BP's internal investigationteam and from the various investigations. In connection withthis, the Company also moved to amend its claims against the BPDefendants in the MDL proceeding to include fraud. The BPDefendants have denied all of the allegations relating to theadditional hydrocarbon zone and filed a motion to prevent theCompany from adding its fraud claim in the MDL. In October 2011,the Company's motion to add the fraud claim against the BPDefendants in the MDL proceeding was denied. The court's rulingdoes not, however, prevent the Company from using the underlyingevidence in its pending claims against the BP Defendants.

In December 2011, BP filed a motion for sanctions against theCompany alleging, among other things, that the Company destroyedevidence relating to post-incident testing of the foam cementslurry on the Deepwater Horizon and requesting adverse findingsagainst the Company. The magistrate judge in the MDL proceedingdenied BP's motion. BP appealed that ruling, and Judge Barbieraffirmed the magistrate judge's decision.

In April 2012, BP announced that it had reached definitivesettlement agreements with the Plaintiffs' Steering Committee(PSC) to resolve the substantial majority of eligible privateeconomic loss and medical claims stemming from the Macondo wellincident. The PSC acts on behalf of individuals and businessplaintiffs in the MDL. BP has estimated that the cost of thesettlements would be approximately $8.5 billion, includingpayments to claimants who opt out of the settlements,administration costs, and plaintiffs' attorneys' fees andexpenses, and has stated that it is possible the actual cost couldbe higher. According to BP, the settlements do not include claimsagainst BP made by the DOJ or other federal agencies or by statesand local governments. In addition, the settlements provide that,to the extent permitted by law, BP will assign to the settlementclass certain of its claims, rights, and recoveries againstTransocean and the Company for damages, including BP's allegeddirect damages such as damages for clean-up expenses and damage tothe well and reservoir. The Company does not believe that itscontract with BP Exploration permits the assignment of certainclaims to the settlement class without the Company's consent. InApril and May 2012, BP and the PSC filed two settlement agreementsand amendments with the MDL court, one agreement addressingeconomic claims and one agreement addressing medical claims, aswell as numerous supporting documents and motions requesting thatthe court approve, among other things, the certification of theclasses for both settlements and a schedule for holding a fairnesshearing and approving the settlements. The MDL court has sinceconfirmed certification of the classes for both settlements andgranted final approval of the settlements. The Company objectedto the settlements. The MDL court held, however, that theCompany, as a non-settling defendant, lacked standing to object tothe settlements but noted that it did not express any opinion asto the validity of BP's assignment of certain claims to thesettlement class and that the settlements do not affect any of theCompany's procedural or substantive rights in the MDL. TheCompany says it is unable to predict at this time the effect thatthe settlements may have on claims against the Company.

In October 2012, the MDL court issued an order dismissing threetypes of plaintiff claims: (1) claims by or on behalf of owners,lessors, and lessees of real property that allege to have suffereda reduction in the value of real property even though the propertywas not physically touched by oil and the property was not sold;(2) claims for economic losses based solely on consumers'decisions not to purchase fuel or goods from BP fuel stations andstores based on consumer animosity toward BP; and (3) claims by oron behalf of recreational fishermen, divers, beachgoers, boatersand others that allege damages such as loss of enjoyment of lifefrom their inability to use portions of the Gulf of Mexico forrecreational and amusement purposes. The MDL court also notedthat the Company is not liable with respect to those claims underthe OPA because the Company is not a "responsible party" underOPA.

The Company says it intends to vigorously defend any litigation,fines, and/or penalties relating to the Macondo well incident andto vigorously pursue any damages, remedies, or other rightsavailable to the Company as a result of the Macondo well incident.The Company has incurred and expect to continue to incursignificant legal fees and costs, some of which the Companyexpects to be covered by indemnity or insurance, as a result ofthe numerous investigations and lawsuits relating to the incident.

HALLIBURTON CO: Oral Argument in "John Fund" Appeal Set for March-----------------------------------------------------------------The U.S. Court of Appeals for the Fifth Circuit is set to hearoral argument in March 2013 in the appeal in the class actionlawsuit captioned Erica P. John Fund, Inc. v. Halliburton Company,et al., according to the Company's February 11, 2013, Form 10-Kfiling with the U.S. Securities and Exchange Commission for theyear ended December 31, 2012.

In June 2002, a class action lawsuit was filed against the Companyin federal court alleging violations of the federal securitieslaws after the SEC initiated an investigation in connection withthe Company's change in accounting for revenue on long-termconstruction projects and related disclosures. In the weeks thatfollowed, approximately twenty similar class actions were filedagainst the Company. Several of those lawsuits also named asdefendants several of the Company's present or former officers anddirectors. The class action cases were later consolidated, andthe amended consolidated class action complaint, styled RichardMoore, et al. v. Halliburton Company, et al., was filed and servedupon the Company in April 2003. As a result of a substitution oflead plaintiffs, the case was styled Archdiocese of MilwaukeeSupporting Fund (AMSF) v. Halliburton Company, et al. AMSF haschanged its name to Erica P. John Fund, Inc. (the Fund). TheCompany settled with the SEC in the second quarter of 2004.

In June 2003, the lead plaintiffs filed a motion for leave to filea second amended consolidated complaint, which was granted by thecourt. In addition to restating the original accounting anddisclosure claims, the second amended consolidated complaintincluded claims arising out of the Company's 1998 acquisition ofDresser Industries, Inc., including that the Company failed totimely disclose the resulting asbestos liability exposure.

In April 2005, the court appointed new co-lead counsel and namedthe Fund the new lead plaintiff, directing that it file a thirdconsolidated amended complaint and that the Company file itsmotion to dismiss. The court held oral arguments on that motionin August 2005. In March 2006, the court entered an order inwhich it granted the motion to dismiss with respect to claimsarising prior to June 1999 and granted the motion with respect tocertain other claims while permitting the Fund to re-plead some ofthose claims to correct deficiencies in its earlier complaint. InApril 2006, the Fund filed its fourth amended consolidatedcomplaint. The Company filed a motion to dismiss those portionsof the complaint that had been re-pled. A hearing was held onthat motion in July 2006, and in March 2007 the court ordereddismissal of the claims against all individual defendants otherthan the Company's Chief Executive Officer (CEO). The courtordered that the case proceed against the Company and its CEO.

In September 2007, the Fund filed a motion for classcertification, and the Company's response was filed in November2007. The district court held a hearing in March 2008, and issuedan order November 3, 2008, denying the motion for classcertification. The Fund appealed the district court's order tothe Fifth Circuit Court of Appeals. The Fifth Circuit affirmedthe district court's order denying class certification. OnMay 13, 2010, the Fund filed a writ of certiorari in the UnitedStates Supreme Court. In January 2011, the Supreme Court grantedthe writ of certiorari and accepted the appeal. The Court heardoral arguments in April 2011 and issued its decision in June 2011,reversing the Fifth Circuit ruling that the Fund needed to proveloss causation in order to obtain class certification. TheCourt's ruling was limited to the Fifth Circuit's loss causationrequirement, and the case was returned to the Fifth Circuit forfurther consideration of the Company's other arguments for denyingclass certification. The Fifth Circuit returned the case to thedistrict court, and in January 2012 the court issued an ordercertifying the class. The Company filed a Petition for Leave toAppeal with the Fifth Circuit, which was granted and the case isstayed at the district court pending this appeal. The FifthCircuit is set to hear oral argument in the appeal in March 2013.

In spite of its age, the case is at an early stage, and theCompany cannot predict the outcome or consequences thereof. TheCompany intends to vigorously defend this case.

HCA HOLDINGS: March Hearing Set on Bid to Dismiss Securities Suit-----------------------------------------------------------------A hearing on HCA Holdings, Inc.'s motion to dismiss a securitiesclass action lawsuit is scheduled for March 2013, according to theCompany's February 11, 2013, Form 8-K filing with the U.S.Securities and Exchange Commission.

On October 28, 2011, a shareholder action, Schuh v. HCA Holdings,Inc. et al., was filed in the United States District Court for theMiddle District of Tennessee seeking monetary relief. The casesought to include as a class all persons who acquired theCompany's stock pursuant or traceable to the Company'sRegistration Statement issued in connection with the March 9, 2011initial public offering. The lawsuit asserted a claim underSection 11 of the Securities Act of 1933 against the Company,certain members of the board of directors, and certainunderwriters in the offering. It further asserted a claim underSection 15 of the Securities Act of 1933 against the same membersof the board of directors. The action alleged variousdeficiencies in the Company's disclosures in the RegistrationStatement. Subsequently, two additional class action complaints,Kishtah v. HCA Holdings, Inc. et al. and Daniels v. HCA Holdings,Inc. et al., setting forth substantially similar claims againstsubstantially the same defendants were filed in the same federalcourt on November 16, 2011, and December 12, 2011, respectively.All three of the cases were consolidated.

On May 3, 2012, the court appointed New England Teamsters &Trucking Industry Pension Fund as Lead Plaintiff for theconsolidated action. On July 13, 2012, the lead plaintiff filedan amended complaint asserting claims under Sections 11 and12(a)(2) of the Securities Act of 1933 against the Company,certain members of the board of directors, and certainunderwriters in the offering. It further asserts a claim underSection 15 of the Securities Act of 1933 against the same membersof the board of directors and Hercules Holdings II, LLC, amajority shareholder of the Company. The consolidated complaintalleges deficiencies in the Company's disclosures in theRegistration Statement and Prospectus relating to: (1) theaccounting for the Company's 2006 recapitalization and 2010reorganization; (2) the Company's failure to maintain effectiveinternal controls relating to its accounting for suchtransactions; and (3) the Company's Medicare and Medicaid revenuegrowth rates. The Company and other defendants moved to dismissthe amended complaint on September 11, 2012. The Court hasscheduled a hearing on the motion for March 2013.

Founded in 1968, HCA Holdings, Inc. --http://www.hcahealthcare.com/-- through its subsidiaries, provides health care services in the United States. The Companyowns, manages, or operates hospitals, freestanding surgerycenters, diagnostic and imaging centers, radiation and oncologytherapy centers, rehabilitation and physical therapy centers, andvarious other facilities. The Company is headquartered inNashville, Tennessee.

INSTAGRAM: Seeks Dismissal of Photo-Sharing Policy Class Action---------------------------------------------------------------Catherine Shu, writing for Tech Crunch, reports that Instagramasked a federal court on Feb. 13 to throw out a class actionlawsuit filed by users upset over the photo-sharing app's changesto its terms of service. The lawsuit was brought against theservice in December by an Instagram user who accused it of breachof contract, among other claims.

An update in Instagram's terms of service and privacy policy,which was introduced so it could better collaborate with Facebookafter the social networking service purchased it, upset andconfused users who worried that their photos would be sold or usedin ads without their permission. Instagram founder Kevin Systromchanged the problematic wording in the policy, but it keptlanguage indicating "that we may not always identify paidservices, sponsored content, or commercial communications assuch." Instagram also kept wording that gives it the ability toplace ads related to user content, as well as a new mandatoryarbitration clause that means users waive their rights toparticipate in class action lawsuits under almost allcircumstances (the lawsuit came before the new TOS went in effecton January 19).

The lawsuit, filed by San Diego law firm Finkelstein & Krinsk,alleged that even if users delete their Instagram account, theyforfeit rights to photos they have already uploaded to theservice. In its filing on Feb. 13, Instagram argued thatplaintiff Lucy Funes has no right to bring her claim because shecould have deleted her account before the changes in the terms ofservice went into effect. The changes were announced December 17,before Systrom changed them a few days later in response to thecontroversy. Ms. Funes filed her lawsuit on December 21, about amonth before new terms of service went into effect on January 19,and continued to use her account after that day, according toInstagram's filing.

Instagram also disputed Ms. Funes' claims that the policy changesmeant she transferred rights to her photos to the company.

Facebook, which acquired Instagram in a roughly $1 billion cashand stock deal in April 2012, declined to comment.

The Defendant has systematically labeled its oil products as "allnatural" on the product packaging but this claim is deceptive andmisleading because the Products are made with unnaturalingredients, Ms. Parker alleges. She contends that the Productsare made with plants whose genes have been altered by scientistsin a lab for the express purpose of causing those plants toexhibit traits that are not naturally their own. She adds thatthe Defendant's conduct harms consumers by inducing them topurchase and consume products with genetically modified organismson the false premise that the products are "all natural."

Ms. Parker is a resident of San Francisco, California. She haspurchased several Products in San Francisco, California, withinthe past four years in reliance on the Defendant's representationsthat the Products were "All Natural."

MERCK: Settles Two Securities Class Actions for $688 Million------------------------------------------------------------Paul Quintaro, writing for MedCity News, reports that Merck, knownas MSD outside the United States and Canada, announced on Feb. 14that it has reached an agreement in principle with plaintiffs toresolve two federal securities class-action lawsuits. The suitsare pending in the U.S. District Court for the District of NewJersey against Merck, Schering-Plough Corporation and certain oftheir current and former officers and directors.

Under the proposed agreement, which will have no impact on Merck's2013 results of operations, the company will pay $215 million toresolve the securities class action against all of the Merckdefendants and $473 million to resolve the securities class actionagainst all of the Schering-Plough defendants. In connection withthe settlement, Merck recorded a pre-tax and after-tax charge of$493 million, which reflects anticipated insurance recoveries.This charge reduced the company's previously reported fourth-quarter 2012 GAAP (generally accepted accounting principles) EPS(earnings per share) results from $0.46 to $0.30 per share andfull-year 2012 GAAP results from $2.16 to $2.00 per share, but didnot change its previously reported non-GAAP results.

The plaintiffs are investors who purchased certain securitiesissued by Merck and Schering-Plough between December 2006 andMarch 2008 and claim that they lost money when the results of theENHANCE trial were published in early 2008. Merck continues tobelieve that both companies acted responsibly in connection withthe ENHANCE study, and this agreement contains no admission ofliability or wrongdoing. The agreement is subject to courtapproval.

"This agreement avoids the uncertainties of a jury trial and willresolve all of the remaining litigation in connection with theENHANCE study," said Bruce N. Kuhlik, executive vice president andgeneral counsel of Merck. "We believe it is in the best interestsof the company and its shareholders to put this matter behind us,and to continue our focus on scientific innovations that improvehealth worldwide."

NASDAQ OMX: Bid to Remand "Zack" Suit to NY State Court Denied--------------------------------------------------------------District Judge Robert W. Sweet of the U.S. District Court for theSouthern District of New York denied a motion to remand a proposedclass action filed by Michael Zack against NASDAQ OMX Group, Inc.and the NASDAQ Stock Market LLC.

This action is one of 11 class actions filed against NASDAQrelating to the May 18, 2012 initial public offering of Facebook,Inc. The NASDAQ Actions were filed on behalf of retail investorswho contended that their orders to purchase or sell Facebook stockwere not properly executed or confirmed as a result of systemsissued experienced by NASDAQ on the day of the Facebook IPO.The cases were assigned to the District Court for coordination orconsolidation of the pretrial proceedings under IN RE FACEBOOK,INC., IPO SECURITIES AND DERIVATIVE LITIGATION, MDL No. 12-2389,No. 12 Civ. 6439.

Mr. Zack has moved to remand his proposed class action back to theSupreme Court for the State of New York, New York County, where itwas originally filed.

The Defendants argued, and Judge Sweet agreed, that remand wouldbe improper because the federal issues underlying the Plaintiff'sstate law claims are sufficiently substantial to confer federalquestion jurisdiction.

A copy of the District Court's February 12, 2013 Opinion & Orderis available at http://is.gd/U93oNBfrom Leagle.com.

NAVARRE CORP: Seeks Dismissal of Remaining Merger-Related Suit--------------------------------------------------------------Navarre Corporation disclosed in its February 11, 2013, Form 10-Qfiling with the U.S. Securities and Exchange Commission for thequarter ended December 31, 2012, that it seeks the dismissal ofthe remaining merger-related class action lawsuit.

On November 20, 2012, Navarre acquired all of the equity interestsof SpeedFC, Inc. (a Delaware corporation), through a merger ofthat entity with and into a Navarre wholly-owned subsidiary, nownamed SpeedFC, Inc., a Minnesota corporation ("SpeedFC")(thetransaction, the "Acquisition") pursuant to the terms of thatcertain Agreement and Plan of Merger dated September 27, 2012, asamended on October 29, 2012 (the "Merger Agreement"). SpeedFC isa leading provider of end-to-end e-commerce services to retailersand manufacturers and is part of the Company's e-commerce andfulfillment segment. The Company completed the acquisition ofSpeedFC on November 20, 2012. The results of SpeedFC arereflected in the e-commerce and fulfillment segment.

On October 16, 2012, a purported class action lawsuit on behalf ofNavarre shareholders relating to the transactions contemplated bythe SpeedFC Merger Agreement was filed in the United StatesDistrict Court for the District of Minnesota against the Company,the Board of Directors, the Company's acquisition subsidiary andSpeedFC, Inc. entitled Helene Gottlieb v. Richard S. Willis, etal. The lawsuit generally alleged that the Board breached itsfiduciary duties and violated disclosure requirements by, amongother things, attempting to acquire SpeedFC by means of a proxystatement that fails to disclose material information concerningthe proposed acquisition. The alleged misrepresentations and/oromissions of material facts in the proxy statement include afailure to include certain financial forecasts, financialinformation regarding the proposed transaction and relatedfinancing and information concerning the financial analysisperformed by the Company's financial advisor. The lawsuit furtheralleged that certain defendants aided and abetted these breaches.The lawsuit sought unspecified damages and equitable relief.

The plaintiff filed a motion for expedited discovery and apreliminary injunction on October 24, 2012, and a hearing occurredon November 1, 2012. On November 7, 2012, the court denied theplaintiff's motion for a preliminary injuction.

On October 29, 2012, a second purported class action entitledDavin Pokoik v. Richard S Willis, et al. was filed in the UnitedStates District Court for the District of Minnesota against theCompany, the Board of Directors, the Company's acquisitionsubsidiary and SpeedFC, Inc. This lawsuit asserts substantiallysimilar claims and requests substantially similar relief as theGottlieb matter. By Court Order dated November 13, 2012, theGottlieb and Pokoik matters were consolidated and plaintiffs wererequired to file an amended Complaint by December 20, 2012. AnAmended Complaint was filed alleging similar claims and PlaintiffGottlieb submitted a notice of voluntary dismissal removing onlyherself from the consolidated action. The Company has moved todismiss the Pokoik matter.

The Company believes that the allegations in this lawsuit arewithout merit and intends to vigorously defend this matter.

The Company does not currently believe that the resolution of anypending matters will have a material adverse effect on theCompany's financial position or liquidity, but an adverse decisionin more than one could be material to the Company's consolidatedresults of operations. No amounts were accrued with respect toproceedings as of December 31, 2012, and March 31, 2012,respectively as not probable or estimable.

The Arkansas Teacher Retirement System and State-Boston RetirementSystem brought the putative securities class action againstNetflix, Inc.; Netflix Co-Founder, Chairman of the Board, and CEOReed Hastings; current Netflix CFO David Wells; and BarryMcCarthy, Netflix's CFO until December 10, 2010, for makingalleged materially false and misleading statements about (1)Netflix's accounting practices, (2) the virtuous cycle, (3)streaming's profitability relative to that of the DVD business,(4) Netflix's statements about its price changes, and (5) theDefendants' statements to the SEC.

The Defendants argued the Plaintiffs have failed to adequatelyplead falsity or scienter.

Judge Conti agreed that the Plaintiffs have failed to show thatthe Defendants' statements were materially false or misleading,and accordingly need not address the issue of scienter.

Judge Conti granted the Defendants' motion to dismiss theConsolidated Class Action Complaint with leave to amend. ThePlaintiffs may file an amended complaint within 30 days of theOrder. Failure to do so will result in dismissal of the actionwith prejudice.

A copy of the District Court's February 13, 2013 Order isavailable at http://is.gd/yOymStfrom Leagle.com.

NEW ENGLAND COMPOUNDING: Meningitis Outbreak MDL Hearing in Mass.-----------------------------------------------------------------The Associated Press reports that a judicial panel ruled onFeb. 12 that all suits filed against New England CompoundingCenter, a pharmacy linked to a multi-state fungal meningitisoutbreak, will be heard in federal court in Massachusetts.

The U.S. Judicial Panel on Multidistrict Litigation has assignedJudge F. Dennis Saylor in Boston the more 120 suits filed againstthe New England Compounding Center.

The fungal meningitis outbreak, discovered in Tennessee inSeptember, has been blamed on a steroid produced by the NECC. Theoutbreak has spread to 20 states, sickening more than 650 andkilling 46.

Some plaintiffs had requested the cases be centralized inMinnesota. But in its ruling, the panel said that was best donein Massachusetts, because that's where the alleged contaminationoccurred and the federal and state investigations into theFramingham-based NECC are focused there.

"Thus, the primary witnesses, physical evidence, and documentaryevidence likely will be located in Massachusetts," the panel'sruling read. "Additionally, defendant is headquartered inMassachusetts, and defendant's bankruptcy case is pending in thisdistrict."

The NECC filed for Chapter 11 bankruptcy in December for thepurpose of setting up a compensation fund for victims. It laterlisted $400,000 in net assets, which plaintiffs'attorneys sayisn't nearly enough to cover the claims.

A bankruptcy court judge has frozen the assets of the NECC's fourowners, so creditors can determine what remains of the millionsthe owners have received from the company.

NEW YORK: 2nd Suit Over NYPD Stop & Frisk Practice Wins Class Cert------------------------------------------------------------------Adam Klasfeld at Courthouse News Service reports that a federaljudge certified the second of three class actions filed over theNew York City Police Department's controversial stop-and-friskpractices.

Jaenean Ligon leads the class in this case, made up of Latino andblack New Yorkers who oppose police stops on suspicion of trespassoutside certain privately owned buildings in the Bronx.

Before a court found the practice unconstitutional, police claimedthe right to make stops in private buildings that are enrolled inthe Trespass Affidavit Program, which was formerly known in theBronx as Operation Clean Halls.

Another class action, Floyd v. City of New York, broadly addressesracial disparities in stops. A third class action, Davis v. Cityof New York, targets "vertical patrols" in public housingcomplexes.

U.S. District Judge Scheindlin presides over all three cases, andshe has sided consistently against the NYPD.

So far, she has approved claims in all three cases, certifiedclasses in the Floyd and Ligon cases, and granted a preliminaryinjunction in the Ligon lawsuit after holding a public hearinglate last year.

Witnesses there included a Columbia professor and former assistantdistrict attorney from the Bronx, who testified that the NYPD hasillegally stopped people in the Bronx without reasonable suspicionof a crime.

"For those of us who do not fear being stopped as we approach orleave our own homes or those of our friends and families, it isdifficult to believe that residents of one of our boroughs liveunder such a threat," Scheindlin wrote last month. "In light ofthe evidence presented at the hearing, however, I am compelled toconclude that this is the case."

The judge ordered the parties to present arguments about the bestway to rein in the program.

Her second class certification Monday makes it likely that theClean Halls will be forced to undergo systemic change.

The class includes: "All individuals who have been or are at riskof being stopped outdoors without legal justification by NYPDofficers on suspicion of trespassing in Bronx apartment buildingsenrolled in the NYPD's Trespass Affidavit Program (commonlyreferred to as 'Operation Clean Halls')."

REALTY INCOME: Still Defends Class Suits Over ARCT Acquisition--------------------------------------------------------------Realty Income Corporation is defending its subsidiary againstclass action lawsuits arising from its acquisition of AmericanRealty Capital Trust, Inc., according to the Company'sFebruary 11, 2013, Form 8-K filing with the U.S. Securities andExchange Commission.

Two alleged class actions also have been filed on behalf ofalleged stockholders of American Realty in the Supreme Court ofthe State of New York for New York, New York, under the followingcaptions: The Carol L. Possehl Living Trust v. American RealtyCapital Trust, Inc., et al., No. 653300-2012, filed September 20,2012; and Salenger v. American Realty Capital Trust, Inc. et al.,No. 353355-2012, filed September 25, 2012. On October 18, 2012,the cases were consolidated under the caption In re AmericanRealty Capital Trust Shareholders Litigation, and on October 19,2012, defendants filed a petition to stay the consolidated casepending resolution of the actions in Maryland.

All of these complaints name as defendants American Realty,members of its Board of Directors, Realty and Merger Sub. In eachcase, the plaintiffs allege that the American Realty's Directorsbreached their fiduciary duties to American Realty and/or itsstockholders in negotiating and approving the Merger Agreement,that the consideration negotiated in the Merger Agreementimproperly values American Realty , that its stockholders will notreceive fair value for their common stock of American Realty inthe Merger, and that the terms of the Merger Agreement imposeimproper deal-protection devices that purportedly precludecompeting offers. The complaints further allege that Realty,Merger Sub and, in some cases, American Realty aided and abettedthose alleged breaches of fiduciary duty. Plaintiffs seekinjunctive relief, including enjoining or rescinding the Merger,and an award of other unspecified attorneys' and other fees andcosts, in addition to other relief.

REXNORD CORP: Awaits OK of Settlement in Zurn Brass Fittings Suit-----------------------------------------------------------------Rexnord Corporation awaits court approval of its settlement oflawsuits related to Zurn PEX brass fittings, according to theCompany's February 11, 2013, Form 10-Q filing with the U.S.Securities and Exchange Commission for the quarter endedDecember 29, 2012.

The Company's subsidiaries, Zurn PEX, Inc. and Zurn Industries,LLC, have been named as defendants in a number of individual andclass action lawsuits in various United States courts. Theplaintiffs in these lawsuits claim damages due to the allegedfailure or anticipated failure of Zurn brass fittings on the PEXplumbing systems in homes and other structures. The complaintsassert various causes of action, including but not limited tonegligence, breach of warranty, fraud, and violations of theMagnuson Moss Act and certain state consumer protection laws, andseek declaratory and injunctive relief, and damages (includingpunitive damages).

In July 2012, the Company reached an agreement in principle tosettle the liability underlying this litigation; this agreementwas reflected in a settlement agreement filed with the court inOctober 2012. The settlement is designed to resolve, on anational basis, the Company's overall exposure for both known andunknown claims related to the alleged failure or anticipatedfailure of Zurn brass fittings on PEX plumbing systems, subject tothe right of eligible class members to opt-out of the settlementand pursue their claims independently. The settlement remainssubject to final court approval, including the right of objectionby interested parties, and utilizes a seven year claims fund,which is capped at $20 million, and is funded in installments overthe seven year period based on claim activity and minimum fundingcriteria. The settlement also covers class action plaintiffs'attorneys' fees and expenses in an amount not to exceed $8.5million and related administrative costs.

The Company has recorded a reserve related to the brass fittingsliability, which takes into account, in pertinent part, the agreedcontributions by insurance carriers, as well as exposure from theclaims fund, potential opt-outs and the waiver of future insurancecoverage. While the Company believes its reserve reflects themost likely estimate of the loss contingency associated withbringing all aspects of the Zurn PEX brass fittings matter toresolution, additional reserve adjustments should be expected.Management, however, does not expect such adjustments will bematerial to its financial position, assuming there are nosignificant changes in current facts and assumptions, althoughthere can be no assurances.

The Company's insurance carriers have funded the Company's defensein these proceedings; however, they filed a lawsuit for adeclaratory judgment challenging their coverage obligations withrespect to certain classes of claims. The lawsuit, which ispending, is expected to be resolved in conjunction with theapproval of the settlement of the underlying claims.

The Company says it can provide no assurance that the liabilityand related litigation will be resolved on the anticipated terms,or at all, or that final court approval will be granted. If finalcourt approval is not granted the Company will continue tovigorously defend these claims. Even if final court approval isachieved the Company expects to continue to vigorously defendagainst any opt-out claims. In addition, the Company cannotprovide assurance that the insurance carriers' action will beresolved, or on the final terms of such resolution. Due to theuncertainties of litigation (including approval of the potentialsettlement), and the related insurance coverage and collectionactions and issues, as well as the actual number or value ofclaims (including opt-outs), the Company may be subject tosubstantial liability beyond the reserve that has been taken thatcould have a material adverse effect on the Company and itsresults of operations.

REXNORD CORP: Zurn Defends Suits Alleging Asbestos Injuries-----------------------------------------------------------Rexnord Corporation's subsidiaries are defending lawsuits allegingpersonal injuries caused by exposure to asbestos used primarily inindustrial boilers, according to the Company's February 11, 2013,Form 10-Q filing with the U.S. Securities and Exchange Commissionfor the quarter ended December 29, 2012.

Certain Water Management subsidiaries are subject to asbestos andclass action related litigation. As of December 29, 2012, theCompany's subsidiaries, Zurn PEX, Inc. and Zurn Industries, LLC,and an average of approximately 80 other unrelated companies weredefendants in approximately 7,000 asbestos related lawsuitsrepresenting approximately 27,000 claims. Plaintiffs' claimsallege personal injuries caused by exposure to asbestos usedprimarily in industrial boilers formerly manufactured by a segmentof Zurn. Zurn did not manufacture asbestos or asbestoscomponents. Instead, Zurn purchased them from suppliers. Theseclaims are being handled pursuant to a defense strategy funded byinsurers.

As of December 29, 2012, the Company estimates the potentialliability for asbestos-related claims pending against Zurn as wellas the claims expected to be filed in the next ten years to beapproximately $42.0 million of which Zurn expects to payapproximately $33.0 million in the next ten years on such claims,with the balance of the estimated liability being paid insubsequent years. The $42.0 million was developed based on anactuarial study and represents the projected indemnity payout forclaims filed in the next 10 years. However, there are inherentuncertainties involved in estimating the number of future asbestosclaims, future settlement costs, and the effectiveness of defensestrategies and settlement initiatives. As a result, Zurn's actualliability could differ from the estimate. Further, while thiscurrent asbestos liability is based on an estimate of claimsthrough the next ten years, such liability may continue beyondthat time frame, and such liability could be substantial.

Management estimates that its available insurance to cover itspotential asbestos liability as of December 29, 2012, isapproximately $255.1 million, and believes that all current claimsare covered by this insurance. However, principally as a resultof the past insolvency of certain of the Company's insurancecarriers, certain coverage gaps will exist if and after theCompany's other carriers have paid the first $179.1 million ofaggregate liabilities. In order for the next $51.0 million ofinsurance coverage from solvent carriers to apply, managementestimates that it would need to satisfy $14.0 million of asbestosclaims. Layered within the final $25.0 million of the total$255.1 million of coverage, management estimates that it wouldneed to satisfy an additional $80.0 million of asbestos claims.If required to pay any such amounts, the Company could pursuerecovery against the insolvent carriers, but it is not currentlypossible to determine the likelihood or amount of such recoveries,if any.

As of December 29, 2012, the Company has a recorded receivablefrom its insurance carriers of $42.0 million, which corresponds tothe amount of its potential asbestos liability that is covered byavailable insurance and is currently determined to be probable ofrecovery. However, there is no assurance that $255.1 million ofinsurance coverage will ultimately be available or that Zurn'sasbestos liabilities will not ultimately exceed $255.1 million.Factors that could cause a decrease in the amount of availablecoverage include: changes in law governing the policies, potentialdisputes with the carriers regarding the scope of coverage, andinsolvencies of one or more of the Company's carriers.

ROBERT'S AMERICAN: Sued for Using GMOs, Misleading Product Labels-----------------------------------------------------------------Michael Hill, individually and on behalf of all others similarlysituated v. Robert's American Gourmet Food, LLC, a DelawareLimited Liability Company dba Pirate Brands, Case No. 4:13-cv-00696 (N.D. Calif., February 15, 2013) alleges that theDefendant's "all natural" claim in its products' labels isdeceptive and misleading because those products are made withunnatural ingredients.

Specifically, Mr. Hill contends, the Products are made with plantswhose genes have been altered by scientists in a lab for theexpress purpose of causing those plants to exhibit traits that arenot naturally their own. He argues that genetically modifiedorganisms are not natural by design and, hence, the Products alsocontain chemically synthesized ingredients that are not natural.

Mr. Hill is a resident of San Francisco, California. He haspurchased several Products in San Francisco, California, withinthe past four years in reliance on the Defendant's representationsthat the Products were "All Natural."

Meanwhile, two Rhythm & Hues employees on Feb. 15 filed class-action suits against the company, claiming that its recent firingof hundreds of workers just before filing for bankruptcyprotection violated labor laws requiring 60 days advance notice ofterminations. The company filed for Chapter 11 protection onFeb. 13. Employees were informed of the layoffs on Feb. 10 andFeb. 11, according to the suits.

The loan, approved by U.S. Bankruptcy Judge Neil W. Bason, includea $6 million influx on Feb. 15 and $5 million to be advanced onFeb. 19. Judge Bason has scheduled a March 12 hearing on thedebtor-in-financing, where he will decide whether to approveadditional installments of $4 million on March 18 and $1.6 millionon April 8.

Anthony Barcelo, a compositing technical director at the firm,filed suit in U.S. Bankruptcy Court in Los Angeles on Feb. 15 onbehalf of himself and other employees who were laid off. He citesa figure of 254 employees laid off from the El Segundo facility onor within 30 days of Feb. 11. His suit seeks to recover 60 dayswages and benefits under the WARN Act.

"I felt compelled to be the one (to put his name on the classaction suit)," Mr. Barcelo told Variety. Mr. Barcelo says he wasleft nearly penniless when R&H delayed his final paychecks.

"It's the artists who are getting screwed here, not themoviegoers, not the companies, not the studios," said Mr. Barcelo,who has taken a new vfx job in Vancouver.

Another employee, Thomas Capizzi, a computer modeler who had beenwith the company for 16 years, filed a similar class-action suitagainst Rhythm & Hues later on Feb. 15. He also seeks 60 dayswages and benefits. One of his attorneys, Jack Reeder, noted thatthere was no mention in any papers filed by Rhythm & Hues in itsbankruptcy case of any layoffs outside of the U.S.

Both of the cases also cite violations California's version of theWARN Act.

Mr. Barcelo's attorney, Jack Raisner of Outten & Golden, also isrepresenting an employee of Digital Domain Media Group who claimsDDMG violated the WARN Act when it laid off employees in theclosure of its Florida facility last year. That class-action suitwas filed in September 2012 in the Delaware bankruptcy court wherethe rump DDMG's case was being handled.

DDMG sold off California visual effects house Digital Domain in anaccelerated auction.

SHELL BRASIL: Offers Millions to Settle Ex-Workers' Class Action----------------------------------------------------------------The Associated Press reports that Shell Brasil SA and BASF SA haveoffered more than $20 million to settle a class-action lawsuitwith former workers allegedly contaminated at a pesticide plant inthe state of Sao Paulo, Brazil's top labor court said on Feb. 15.

The court said on its Web site that the two companies have offeredto provide 884 workers with lifelong health plans with a "globalvalue" of 52 million reals ($26 million).

Representatives of the two companies and workers are scheduled tomeet again at the end of a month to discuss the proposal, thecourt said.

Shell spokesman Glauco Paiva confirmed the offer of a lifelonghealth plan but said "for now we prefer not to mention anynumbers." BASF also confirmed the offer on its Web site.

The chemical plant operated from 1977 until it was closed in 2002.Shell originally owned it, but sold the operation to AmericanCyanamid in 1995. Germany-based BASF bought American Cyanamid in2000 and took over the chemicals plant in the city of Paulinia.

In its 2011 annual report, BASF SE, the parent company of BASF SA,acknowledged the site was "significantly contaminated by theproduction of crop protection products." It claimed that the sitewas contaminated before it bought the plant.

Prosecutors have said that former workers at the plant and peoplewho live near it have shown many health problems, includingprostate cancer, problems with short-term memory and issues withtheir thyroid glands.

SKILLED HEALTHCARE: Humboldt Suit Injunction Vacated in December----------------------------------------------------------------The Superior Court of California granted in December 2012 themotion of Skilled Healthcare Group, Inc. and its subsidiaries forearly termination of an injunction related to the Humboldt CountyAction, according to the Company's February 11, 2013, Form 10-Kfiling with the U.S. Securities and Exchange Commission for theyear ended December 31, 2012.

In connection with the September 2010 settlement of the classaction litigation against Skilled and certain of its subsidiariesrelated to, among other matters, alleged understaffing at certainCalifornia skilled nursing facilities operated by Skilled'ssubsidiaries, Skilled and its defendant subsidiaries entered intosettlement agreements with the plaintiffs and intervenor andagreed to an injunction. The settlement was approved by theSuperior Court of California, Humboldt County on November 30,2010. Under the terms of the settlement agreements, the defendantentities deposited a total of $50.0 million into escrow accountsto cover settlement payments to class members, notice and claimsadministration costs, reasonable attorneys' fees and costs andcertain other payments, including $5.0 million to settle certaingovernment agency claims and potential government claims that mayarise. Of the $5.0 million provided for such government claims,$1.0 million has been released by the court to the Humboldt CountyTreasurer-Tax Collector on behalf of the People of the State ofCalifornia for their release of the Defendants. The remaining$4.0 million is available for the settlement and releases by theCalifornia Attorney General and certain other District Attorneys.However, in the event that any of these government authoritiesinstead file certain actions against the Defendants by the secondanniversary of the effective date of the settlement agreement,which will occur in February 2013, the entire $4.0 million willrevert to the Defendants upon their request to the SettlementAdministrator.

In addition to the $1.0 million paid to the Humboldt CountyTreasurer-Tax Collector on behalf of the People of the State ofCalifornia, the court also approved payments from the escrow of upto approximately $24.8 million for attorneys' fees and costs and$10,000 to each of the three named plaintiffs. Pursuant to theinjunction, the 22 Defendants that operated California nursingfacilities were required to provide specified nurse staffinglevels, comply with specified state and federal laws governingstaffing levels and posting requirements, and provide reports andinformation to a court-appointed auditor. The injunction was toremain in effect for a period of 24 months unless extended foradditional three-month periods as to those Defendants that may befound in violation. Defendants demonstrating compliance for an18-month period that ended September 30, 2012, were permitted topetition for early termination of the injunction. The Defendantswere required to demonstrate over the term of the injunction thatthe costs of the injunction met a minimum threshold level pursuantto the settlement agreement, which level, initially $9.6 million,was reduced by the portion attributable to any Defendant in thecase that no longer operated a skilled nursing facility during theinjunction period. The injunction costs included, among otherthings, costs attributable to (i) enhanced reporting requirements;(ii) implementing advanced staffing tracking systems; (iii) feesand expenses paid to an auditor and special master; (iv) increasedlabor and labor related expenses; and (v) lost revenuesattributable to admission decisions based on compliance with theterms and conditions of the injunction. To the extent the costsof complying with the injunction were less than the agreed uponthreshold amount, the Defendants would have been required to remitany shortfall to the settlement fund.

In April 2011, five of the subsidiary Defendants transferred theiroperations to an unaffiliated third party skilled nursing facilityoperator -- Former Humboldt County Facilities. On November 14,2012, the Defendants filed a motion to terminate the injunctionand vacate the final judgment in the Humboldt County Action.Based upon compliance with the injunction through the requisiteeighteen-month period, on December 21, 2012, the Superior Court ofCalifornia, Humboldt County granted the Defendants' motion forearly termination of the injunction, and the injunction has nowended with respect to the 17 California nursing facilities thatthe subsidiary Defendants still operate. In its order, the courtdetermined that the injunction termination did not apply to theFormer Humboldt County Facilities. However, the 2010 court-approved stipulation and order establishing the injunctionprovides that the injunction applies to the named defendants andany successor licensees of the applicable nursing facilities, butonly if those successor licensees are affiliates of the nameddefendants. As noted, the Former Humboldt County Facilities havebeen operated by an unaffiliated third party since April 2011.Therefore, under the terms of the injunction it does not apply tothe Former Humboldt County Facilities unless an affiliate of theDefendants operates them.

In the course of ongoing communications with the CaliforniaAttorney General's Bureau of Medi-Cal Fraud & Elder Abuse("BMFEA") related to the BMFEA matter, representatives of theCalifornia Attorney General and the U.S. Department of Justicehave indicated an interest in pursuing an action under the FalseClaims Act and certain other legal theories based upon the juryfindings of understaffing in the Humboldt County Action. Whilethe Company continues to cooperate with the government'sevaluation of the matter, the Company views the government'sapparent legal theories, including the False Claims Act theories,as lacking support in the established case law and intends tovigorously defend any such action if brought.

TOYOTA MOTOR: Agrees to Pay $29MM to Resolve Safety Issues Probe----------------------------------------------------------------Amanda Bronstad, writing for The National Law Journal, reportsthat Toyota Motor Corp. and its U.S. subsidiaries agreed onFebruary 14 to pay $29 million to resolve investigations byattorneys general in 29 states into whether it misled consumersabout the safety of its vehicles.

The investigations followed recalls of more than 10 millionvehicles for defects associated with sudden acceleration. Theyfocused on whether Toyota had misled consumers about safetyproblems in models including the Camry, Lexus, Tundra, Tacoma andPrius hybrid.

The states and the U.S. territory of American Samoa will split themoney. The settlement sets aside an additional $5 million forcustomers who had to pay for rental cars or taxi fares while theircars were being repaired.

Toyota agreed to notify new buyers about defects in vehicles thatit had purchased from previous owners. It also agreed not todesignate any vehicle with alleged safety defects as "Toyotacertified" or misrepresent why a dealer has inspected or repaireda vehicle.

Toyota also agreed to improve communications between its Japanheadquarters and its U.S. subsidiaries about how to handle safetyproblems.

"This is an important settlement, not only because of the dollars,but because the terms are designed to help make Toyota moreaccountable, responsive and vigilant regarding vehicle safetyissues," said New Jersey Attorney General Jeffrey Chiesa, who ledthe multistate investigations in cooperation with the attorneysgeneral of Connecticut, Florida, Louisiana, Michigan, Nevada,Ohio, South Carolina and Washington.

The deal does not involve the states of California or New York,where hundreds of lawsuits are pending against Toyota overaccidents attributed to sudden acceleration defects. Both statesreached agreements in 2010 with Toyota to provide specialaccommodations for owners of vehicles affected by the recalls,such as picking up and returning their vehicles from their homesor reimbursing them for alternative transportation costs.

Christopher Reynolds, group vice president and general counsel ofToyota Motor Sales U.S.A., a division of Toyota Motor Corp., saidin prepared statement: "Resolving this inquiry is another step weare taking to turn the page on legacy issues from Toyota's pastrecalls in a way that benefits our customers. Immediately afterthis inquiry was launched in 2010, Toyota began cooperating fullywith the Attorneys General and implementing 'customer-first'initiatives to address their concerns and those of our customers.Today, we are pleased to have reached a cooperative agreement thatreflects the commitment of Toyota's 37,000 North American teammembers to put customers first in everything we do."

The settlement was the latest move by Toyota to resolve claimsassociated with unintended acceleration. On December 26, thecompany agreed to pay $1.3 billion to resolve a nationwide classaction alleging the company's advertising and marketing materialsmisled consumers about the safety of its vehicles. Toyota haspaid fines totaling $48.8 million to the U.S. National HighwayTraffic Safety Administration for failing to timely informregulators about defects tied to its initial recalls, plus $17.5million in additional fines associated with its recall of nearly155,000 Lexus RX models last June for floor mat entrapmentproblems.

Several attorneys general praised the latest agreement. FloridaAttorney General Pam Bondi said her state would receive $2million, including attorney fees. Mr. Chiesa said New Jerseywould receive $1.9 million. Connecticut Attorney General GeorgeJepsen and Nevada Attorney General Catherine Masto said theirstates would receive about $1.4 million each.

TRANSOCEAN LTD: Judge Approves Criminal Plea as Part of Settlement------------------------------------------------------------------The National Law Journal reports that a federal judge approved onFeb. 14 a Transocean Ltd. subsidiary's criminal plea as part of a$1.4 billion settlement with the U.S. Justice Department overliability for the 2010 Deepwater Horizon oil spill. Remainingclaims include lawsuits filed against Transocean by thousands ofindividuals and businesses, as well as the states of Alabama andLouisiana, seeking economic damages.

TRAVELZOO INC: Still Defends Consolidated Securities Class Suit---------------------------------------------------------------Beginning on August 9, 2011, two purported class action lawsuitswere commenced in the United States District Court for theSouthern District of New York. On January 6, 2012, a Consolidatedand Amended Class Action Complaint was filed. The complaintasserts claims under Section 10(b) and 20(a) pursuant to theSecurities Exchange Act of 1934 alleging that between March 16,2011, and July 21, 2011, Travelzoo Inc. and/or the individualdefendants purportedly issued materially false and misleadingstatements. In particular, the complaint asserts, among otherthings, allegations challenging certain statements relating to theCompany's growth. The complaint also makes allegations regardingthe Company's Getaway business and asserts that certain officersand directors sold stock while in possession of materially adversenon-public information. The action seeks unspecified damages andthe Company is not able to estimate the possible loss or range oflosses that could potentially result from the action. The Companybelieves that the action is without merit and intends to defendthe lawsuits vigorously.

No further updates were reported in the Company's February 11,2013, Form 10-K filing with the U.S. Securities and ExchangeCommission for the year ended December 31, 2012.

UNITED STATES: March 24 Claims Filing Deadline Set for USDA Suit----------------------------------------------------------------Sue Book, writing for Sun Journal, reports that claims fromHispanic and women farmers who believe they may have faceddiscriminatory practices from the USDA between 1981 and 2000 mustfile them by March 24, 2013 in order to be eligible for a cashpayment or loan forgiveness.

It is one of two deadline reminders provided by Kay Yates, Craven-Carteret FSA county executive director in New Bern. The other isfor a USDA Farm Service Agency marketing assistance loan programdeadline which has been extended.

The claim filing process for women and Hispanic farmers to filediscrimination claims is a voluntary alternative to litigation forthose who can prove the USDA denied an application for loan orservice assistance for discriminatory reasons.

The USDA, led by Secretary Tom Vilsack, instituted a comprehensiveplan to ensure that every farmer and rancher is treated equallyand fairly as part of "a new era of civil rights."

In February 2010, the Pigford II settlement with African Americanfarmers was announced and in October 2010 the Keepseaglesettlement with Native American farmers and both have sincereceived court approval.

The Pigford II class action suit originated from complaints byNorth Carolina farmer Timothy Pigford, for himself and 400 otherAfrican American farmers but complaints and awards grew to morethan 13,000.

The cases filed by Hispanic and women farmers over a decade agowere not certified as class actions and the claims processannounced in February 2011 provides a voluntary alternative tocontinuing litigation for Hispanic and female farmers and rancherswho want to use it. It has at least $1.33 billion for cash awardsand tax relief payments and $160 million for farm debt relief forthose eligible.

Call center representatives can be reached at 888-508-4429 or onthe Web site farmerclaims.gov.

Ms. Yates also advises that the marketing assistance loan and loandeficiency payment provisions authorized in the 2008 Farm Billwere extended for the 2013 crop year with the passage of theAmerican Taxpayer Relief Act of 2012.

The loan program provides interim financing for producers at orafter harvest to help meet cash flow needs without sellingcommodities when market prices are typically at harvest-time lows.A producer who is eligible to obtain a loan, but agrees to forgothe loan, may get a loan deficiency payment if they are available.

Bloomberg related that U.S. District Judge Amy Berman Jackson inWashington on Feb. 14 also threw out two related suits, rulingthat all the plaintiffs failed to show the companies conspired torestrict independent ATM operators from charging varying pricesfor customers using alternative networks such as STAR, Shazam Inc.or TransFund.

"Plaintiffs have not set forth sufficient facts to support theirclaim that there was a horizontal conspiracy," Jackson wrote inher 39-page opinion, according to Bloomberg. "Notably absent fromeach of the complaints are facts showing the existence of anagreement, the essential element of any conspiracy."

Bloomberg said the dismissal of the suit leaves ATM operatorsgrappling with the same alleged anti-competitive landscape thatthey claimed prevents them from attracting customers by offering adiscount by making a transaction over less expensive networks.The allegations in the lead case were made by the National ATMCouncil Inc., a trade group based in Jacksonville, Florida, and 13operators of ATMs in nine states, according to Bloomberg. Thegroup sought to represent the 350 non-bank ATM operatorsnationwide and asked for triple damages.

Bloomberg added that the ATM operators claim that the"overwhelming" majority of so-called PIN debit cards used for ATMtransactions are branded by Visa or MasterCard. Under a uniformagreement, the operators can't charge less for transactions over anetwork that competes with Visa and MasterCard, according to thecomplaint.

The lead case is National ATM Council v. Visa Inc., 11-cv-1803,U.S. District Court, District of Columbia (Washington).

* CAFA Rulings Have Broad Implications for Quasi-Class Actions--------------------------------------------------------------According to Michael B. Kimberly, Esq. --mkimberly@mayerbrown.com -- and Kevin S. Ranlett, Esq. --kranlett@mayerbrown.com -- of Mayer Brown, a number of courtsrecently have weighed in on a question whether lawsuits by stateattorneys general seeking restitution on behalf of privatecitizens are subject to removal under the Class Action FairnessAct of 2005 ("CAFA"). These rulings have broad implications forthe litigation of these quasi-class actions. They also are ofsubstantial importance to determining whether securities fraudactions filed by state attorneys general are precluded by thefederal Securities Litigation Uniform Standards Act of 1998("SLUSA").

CAFA allows defendants to remove certain significant "classactions" and "mass actions" from state court to federal court.Usually, actions filed by a state acting for itself aren'tremovable under CAFA for lack of diversity of citizenship; thestate isn't "a citizen of a state different from any defendant."28 U.S.C. Sec. 1332(d)(2)(a). But what if the state is suing tovindicate the financial interests of its private citizens in anaction for restitution -- a case that looks like a class action,walks like a class action, and quacks like a class action? Is thestate still the real-party-in-interest for diversity purposes --or should federal courts consider the private citizens themselves-- who actually stand to recover -- to be the real-parties-in-interest? According to most courts that have ruled on the issue,the answer depends on whether a single "sovereign" claim in acomplaint is enough to exempt the action from removal under CAFAor whether the complaint instead should be analyzed claim by claimto determine removability.

In one recent case -- AU Optronics Corp. v. South Carolina, 699F.3d 385 (4th Cir. 2012) -- the Fourth Circuit held that SouthCarolina's suit seeking restitution on behalf of private citizensfrom manufacturers of liquid crystal display panels for an allegedprice-fixing conspiracy does not trigger federal courtjurisdiction under CAFA. Although the Fourth Circuit acknowledgedthat the state sought restitution on behalf of private citizens,it noted that the state was pursuing other, purely sovereignremedies as well, such as forfeiture and penalties. In affirmingthe district court's remand to the state court, the Fourth Circuitrejected a "claim-by-claim" approach. Instead, choosing to followthe Ninth and Seventh Circuits' "whole-case" approach, the FourthCircuit concluded that the state was the "real party in interestin the lawsuit." This ruling precludes the removal of whateffectively amount to class- and mass-actions when the privateplaintiffs (or, often in practice, plaintiffs' counsel) are ableto lobby their state governments to file "quasi-sovereign"enforcement actions seeking restitution.

In contrast, the Fifth Circuit has concluded that although astate's suit seeking restitution for similar alleged antitrustviolations was not a "class action" under CAFA, it was a "massaction" because it sought "monetary relief" for "100 persons ormore." Mississippi ex rel. Hood v. AU Optronics Corp. (pdf), 701F.3d 796 (5th Cir. 2012). Observing that prior Fifth Circuitprecedent "instructs [the courts] to pierce the pleadings and lookat the real nature of a state's claims" on a "claim-by-claim"basis," the court concluded that "[t]he real parties in interestin Mississippi's suit are those more than 100 persons . . . whowill ultimately benefit from the recovery." The court thusreversed the district court's order remanding the case to statecourt.

For its part, the Second Circuit recently noted the conflict amongthe circuits in Purdue Pharma L.P. v. Kentucky (pdf), 2013 WL85918 (2d Cir. Jan. 9, 2013). The Second Circuit declined toweigh in on the issue, however, because -- in light of aprocedural technicality -- the appellant there argued that thesuit qualified only as a "class action," and "not . . . as a 'massaction' under CAFA" Id. at *4 n.5. Because the suit there had notbeen brought under an analogue to Federal Rule 23, the court heldthat CAFA did not apply, regardless of which approach it mightultimately adopt.

These decisions have implications beyond CAFA. SLUSA prohibitscertain state-court securities fraud class actions. 15 U.S.C. Sec.78bb(f). But similar to CAFA, the statute applies only to suits"by any private party" and in addition includes a savings clausethat permits states "to investigate and bring enforcementactions." Id. In March of this year, the New York Court ofAppeals will consider, in People v. Greenberg (pdf) (Index No.401720/05), whether an action by the state's attorney generalseeking both penalties and restitution on behalf of privatecitizens is a sovereign "enforcement action" or instead a classaction "by [a] private party" within the meaning of SLUSA. Inearlier proceedings in the case, the Appellate Division concludedthat the action was a permitted sovereign "enforcement action" --thus rejecting the same "claim-by-claim" approach under SLUSA thathas divided federal courts in the CAFA context.

Mayer Brown is a global legal services provider comprising legalpractices that are separate entities. The Mayer Brown Practicesare: Mayer Brown LLP and Mayer Brown Europe -- Brussels LLP, bothlimited liability partnerships established in Illinois USA; MayerBrown International LLP, a limited liability partnershipincorporated in England and Wales (authorized and regulated by theSolicitors Regulation Authority and registered in England andWales number OC 303359); Mayer Brown, a SELAS established inFrance; Mayer Brown JSM, a Hong Kong partnership and itsassociated entities in Asia; and Tauil & Chequer Advogados, aBrazilian law partnership with which Mayer Brown is associated."Mayer Brown" and the Mayer Brown logo are the trademarks of theMayer Brown Practices in their respective jurisdictions.

* Canadian Securities Class Action Filings Down in 2012, NERA Says------------------------------------------------------------------Filings of securities class actions in Canada declined to nine newcases during 2012 from the record 15 new filings in 2011, andlower than the average of 12 cases per year since 2008, accordingto NERA Economic Consulting's report released on Feb. 14, Trendsin Canadian Securities Class Actions: 2012 Update.

All of the new filings for 2012 were shareholder class actions,and in contrast to previous years' filings, none involvedallegations of Ponzi schemes, claims relating to the creditcrisis, or claims against North American-listed Chinese companies.The abatement of these recent trends in filings was consistentwith the experience in the US during 2012. However, none of thenine cases filed in Canada appear to be related to the surge inmerger objection cases seen in the US over the last three years.

Notably in 2012, Ernst & Young agreed to pay C$117 million tosettle claims relating to its role as auditor of Chinese companySino-Forest. This partial settlement, if approved, wouldrepresent the largest settlement in a Bill 198 case to date.

Active Cases

With nine new securities class actions filed and the resolution offive cases during 2012, there were 51 active Canadian securitiesclass actions as of 31 December. This is nearly double the numberof active cases four years ago. NERA's database now includes datafor 100 Canadian securities class actions filed since 1997.

"The growing number of active cases on the docket and the recentcourt rulings suggest that we may see both more cases move to theleave application and certification stages and possibly moresettlements in 2013 than we saw in 2012," said NERA Vice PresidentBradley Heys, co-author of the report.

Canadian Securities Class Actions: Key Trends

* Eight of the nine cases filed in 2012 involved issuers withsecurities listed on the TSX.

* Bill 198 cases made up the majority of filings in 2012,accounting for eight of the nine cases filed -- in line withprevious years.

* All of the cases filed in 2012 were filed in Ontario. Twocases (SNC-Lavalin and Agnico-Eagle) were also filed in Qu‚bec.The claims against Facebook and GLG Life Tech Corp were also filedin British Columbia.

* Six of the nine new class actions in 2012 also had parallelUS filings: Angico-Eagle, BP p.l.c., Facebook, GLG Life Tech,Kinross Gold, and Nevsun Resources.

* Two-thirds of the new cases filed in 2012 were broughtagainst companies in the mining or oil and gas sectors.

* Continuing a the trend toward faster filing, the median timeto file from the end of the proposed class period to the date offiling for cases filed in 2012 was approximately 3.1 months, andthe average was 4.6 months.

* Two cases were dismissed during 2012 -- cases broughtagainst Western Coal and CIBC.

* High Court Limits Plaintiffs' Ability to Prosecute Class Actions------------------------------------------------------------------According to an article by Jason M. Halper, Esq. and Ryan J.Andreoli, Esq., of Cadwalader Wickersham & Taft LLP, available atMondaq News Alerts, the little-noticed impact of two distinctlines of decisions by the Supreme Court in recent years has givencompanies greater ability to limit the use of class actionlawsuits and more effectively contest class certification. Thecurrent term may continue this trend, with four cases having thepotential to significantly impact the ability of plaintiffs tobring or maintain class actions. Taken together, the Court'swillingness to decide these issues and its decisions to datesuggest that the Court is cutting back on plaintiffs' ability tosuccessfully prosecute class actions while promoting defendant-companies' ability to avoid or defeat class actions.

The modern federal class action lawsuit gained prominencefollowing Congress's revision of Federal Rule of Civil Procedure23 ("Rule 23'') in the 1960s. Since that time, class actions havegrown, both in terms of the number of filings and the amount ofdamages awarded, and have had a significant impact on how businessis transacted. Proponents of class action litigation point to thefact that, where a defendant is alleged to have caused injury to asignificant number of parties, class litigation increasesefficiencies and promotes judicial economy by eliminating the needfor repeatedly litigating the same or substantially similarclaims. Additionally, class litigation helps to overcome theproblem that de minimis recoveries often ' "do not provide theincentive for any individual to bring a solo action prosecutinghis or her rights.'" (Amchem Prods., Inc. v. Windsor, 521 U.S.591, 617 (1997) (citation omitted)). Class actions, however, comeat a high cost to American businesses and foreign companies thateither operate here or have securities traded on a U.S. exchange.Because a class action aggregates the claims of dozens, hundreds,or even millions of individual plaintiffs, the potential for amassive judgment and (at the very least) a prolonged and expensivelitigation process, places significant pressure on thedefendant(s) to settle, even where the plaintiffs' claims aremeritless. Additionally, class actions are notoriously lawyer-driven, with members of the plaintiffs' bar reaping substantialfees for the opportunity to "serve" plaintiffs who often havelittle interest, and therefore, little involvement in thelitigation.

Because of the controversial nature and potential impact of theclass action lawsuit, there is significant interest when classaction issues are adjudicated by the Supreme Court or one of thefederal Courts of Appeal. Recent Supreme Court decisions oncontractual arbitration provisions and class certificationstandards suggest the Court may further limit the ability ofplaintiffs to file and maintain class action lawsuits in thefuture.

Contractual Arbitration Agreements

Arbitration is a method of dispute resolution generally involvingone or more neutral third-parties-known as arbitrators-whosedecision is binding on the parties. Arbitration, at least intheory, offers the potential for a faster and less-costly disputeresolution process than litigation. The discovery process, whichcan be enormously time-consuming and expensive to parties involvedin litigation and especially in class actions, may be narrowlytailored in an individual arbitration (with limited documentexchanges, interrogatories and depositions). Additionally, motionpractice can be significantly curtailed in an arbitrationproceeding.

The benefits of arbitration, including those referenced above,have induced companies to include mandatory arbitration provisionsin consumer and commercial contracts. These arbitration clauses,in many cases, mandate that a potential plaintiff must pursue anyand all claims against the company individually, rather than as amember or representative of a class. Not surprisingly, theseprovisions have faced substantial opposition from consumer rightsadvocates and plaintiffs' lawyers who pursue claims in the classaction context. The Supreme Court has recently had theopportunity to review several decisions involving classarbitration issues, and its holdings may afford companies theability to substantially decrease the number of class actionlawsuits.

A. Stolt-Nielsen v. AnimalFeeds Int'l Corp.

In 2010, the Supreme Court was presented with the followingquestion: can parties to a commercial contract that provides formandatory arbitration of all disputes-but is silent on the issueof class procedures-be compelled to engage in class arbitration?(See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct.1758 (2010).) In Stolt-Nielsen, the Court found that a pre-disputearbitration agreement that was silent on the issue of classprocedures could not be interpreted to allow classwidearbitration. (See id. at 1762 ("a party may not be compelled underthe FAA to submit to class arbitration unless there is acontractual basis for concluding that the party agreed to do so'')(emphasis in original)).

In the wake of Stolt-Nielsen, a circuit split has developed withrespect to the appropriate interpretation of that decision.Consistent with what appears to be the holding in Stolt-Nielsen,the Fifth Circuit has determined that "arbitrators should not findimplied agreements to submit to class arbitration" where thearbitration clause is silent on this topic. (See Reed v. FloridaMetro. Univ., Inc., 681 F.3d 630, 646 (5th Cir. 2012)). The Secondand Third Circuits, on the other hand, have interpreted Stolt-Nielsen far more narrowly. These courts have held that where theparties' agreement is silent on the class arbitration issue, anarbitrator can permit classwide arbitration upon determining thatthe parties implicitly agreed to that procedure. (See Jock v.Sterling Jewelers Inc., 646 F.3d 113, 123 (2d Cir. 2011) ("noexplicit agreement to permit class arbitration . . . is not thesame thing as stipulating that the parties had reached noagreement on the issue"), cert. denied, 132 S. Ct. 1742 (2012);Sutter v. Oxford Health Plans LLC, 675 F.3d 215, 222-23 (3d Cir.)("No stipulation between [the parties] is conclusive of theparties' intent and, indeed, the parties dispute whether or notthey intended to authorize class arbitration. Therefore, thearbitrator in this case was not constrained to conclude that theparties did not intend to authorize class arbitration''), cert.granted, No. 12-135, 2012 BL 321896 (U.S. Dec. 7, 2012)).

In order to distinguish Stolt-Nielsen, the Jock and Sutter courtsrelied on the fact that the parties in Stolt- Nielsen entered intoa stipulation providing that there was no agreement on classprocedures. This appears to be a distinction without adifference, however, as the same "silence" was at issue in allthree decisions. (See Jock, 646 F.3d at 128 (Winter, J.,dissenting) (asserting that the facts in Jock were "on all fours"with the Supreme Court's decision in Stolt-Nielsen)). Indeed, thearbitration provision in each case neither expressly authorizednor precluded classwide arbitration. The Supreme Court grantedcertiorari in Sutter on Dec. 7, 2012, presumably to resolve thecircuit split regarding the interpretation of Stolt-Nielsen.B. AT&T Mobility LLC v. Concepcion

One year after issuing its decision in Stolt-Nielsen, the SupremeCourt considered a similar case, only this time in the context ofa contract that expressly prohibited classwide arbitration. InAT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), mobilephone customers brought a putative class action against AT&Talleging that the company had engaged in false advertising andfraud under California law. AT&T moved to compel arbitrationunder the terms of its pre-dispute contracts with the plaintiffs,all of which were standard form contracts (or contracts ofadhesion). The plaintiffs opposed the motion, arguing that thesecontracts, which mandated that each plaintiff arbitrate its claimsindividually and expressly disallowed classwide arbitration, wereunconscionable and unlawfully exculpatory under California law.The Supreme Court rejected this argument and upheld the validityof the class action waiver provision in the parties' agreements,ruling that the Federal Arbitration Act ("FAA"), a statutereflecting a ' "liberal federal policy favoring arbitration,'"preempted the conflicting California law: "The overarching purposeof the FAA . . . is to ensure the enforcement of arbitrationagreements according to their terms so as to facilitatestreamlined proceedings. Requiring the availability of classwidearbitration interferes with fundamental attributes of arbitrationand thus creates a scheme inconsistent with the FAA. " (Id. at1745, 1748 (citation omitted)).

As with Stolt-Nielsen, the federal appellate courts have takenseemingly inconsistent positions on how to interpret Concepcion.For example, in Italian Colors Restaurant v. American ExpressTravel Related Services Co. (In re American Express Merchants'Litigation), 667 F.3d 204, reh'g in banc denied, 681 F.3d 139 (2dCir.), cert. granted, 133 S. Ct. 594 (2012), the Second Circuitheld that an arbitration clause containing a class action waiverprovision was unenforceable-even in light of Concepcion-becausethe "practical effect" of that waiver was to prevent plaintiffsfrom bringing federal antitrust claims. (Id. at 215 n.6.) TheNinth and Eleventh Circuits, on the other hand, have interpretedConcepcion more broadly to uphold class action waiver provisions.The Eleventh Circuit has held that "in light of Concepcion, staterules mandating the availability of class arbitration based ongeneralizable characteristics of consumer protection claims . . .are preempted by the FAA, even if they may be 'desirable.'" (Cruzv. Cingular Wireless, LLC, 648 F.3d 1205, 1212 (11th Cir. 2011)(citation omitted).) The Ninth Circuit has criticized the SecondCircuit's decision in AmEx, finding that the Second Circuit'sconclusion was explicitly "foreclose[d]'' by Concepcion. (SeeConeff v. AT &T Corp., 673 F.3d 1155, 1159-60 & n.3 (9th Cir.2012) ("To the extent that the Second Circuit's opinion is notdistinguishable, we disagree with it and agree instead with theEleventh Circuit'')).

On May 29, 2012, the Second Circuit denied the defendant's motionfor rehearing en banc in AmEx. In that decision, several SecondCircuit judges, including Chief Judge Jacobs and Judges Cabranesand Raggi, dissented on the ground that the panel had improperlynarrowed the holding of Concepcion and, in so doing, created an"unwarranted" circuit split. (See 681 F.3d at 146-49.) On November9, 2012, the Supreme Court granted the defendant's petition forcertiorari (presumably to resolve this circuit split).1

Class Certification Standards

Under Rule 23, which governs the procedures applicable to classaction litigation in federal court, "at an early practicabletime'' after a lawsuit has commenced, "the court must determine byorder whether to certify the action as a class action.'' (Fed. R.Civ. P. 23(c)(1)(A)). To prevail on certification, the plaintiffsmust first show that: "(1) the class is so numerous that joinderof all [class] members is impracticable; (2) there are questionsof law or fact common to the class; (3) the claims or defenses ofthe [class] representative[s] are typical of [those of] the class;and (4) the [class] representative[s] will fairly and adequatelyprotect the interests of the class." (Fed. R. Civ. P. 23(a)).

Once these four threshold requirements have been met, a plaintiffmust also convince the court that one of the requirements insubdivision (b) of Rule 23 has been satisfied, that: (1)prosecution of separate actions risks inconsistent adjudicationsand incompatible standards of conduct; (2) defendants have actedor refused to act on grounds generally applicable to the class; or(3) there are common questions of law or fact that predominateover any individual class member's questions, and that a classaction is superior to other methods of adjudication.

The impact of the court's decision to certify a class is difficultto understate. The denial of a class certification motion oftensounds the "death knell" of the litigation (once the appeal ofthat decision has been exhausted) because putative class membersgenerally lack the resources (or are not sufficiently financiallyinterested) to continue prosecuting the action as individualplaintiffs. On the other hand, a grant of class certificationusually will place tremendous pressure on the defendant(s) tosettle, even where viable defenses exist, because of the costs ofdiscovery and the potential for an extravagant damages awardshould the plaintiffs prevail at trial.

Class action defendants have long argued that where the merits ofthe plaintiffs' claims overlap with the elements of Rule 23, adistrict court must rigorously analyze those merits issues toensure that Rule 23 is satisfied and certification is appropriate.Class action plaintiffs, on the other hand, frequently argue thatit is inappropriate to reach merits issues at the classcertification stage, pointing to, among other things, the liberalcertification standard articulated in Eisen v. Carlisle &Jacquelin, 417 U.S. 156, 177 (1974), where the Court found thatthere is "nothing in either the language or history of Rule 23that gives a court any authority to conduct a preliminary inquiryinto the merits of a suit in order to determine whether it may bemaintained as a class action."

In 2011, the Supreme Court considered certain issues regardingmerits consideration at the class certification stage in Wal-MartStores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). This term, theSupreme Court will review two additional decisions involving theextent to which a court should address class certification issuesthat also involve the merits of the plaintiffs' claims.

A. Wal-Mart Stores, Inc. v. Dukes

In 2001, six female Wal-Mart employees sued their employer in theNorthern District of California alleging that the company hadviolated Title VII of the Civil Rights Act of 1964 by payingfemale employees less and promoting women less often than theirmale counterparts. The proposed class had approximately 1.5million members. Wal-Mart opposed class certification on thegrounds that the plaintiffs could not satisfy the "commonality"requirement of Rule 23(a) because there was not a single,countrywide Wal-Mart policy to which the plaintiffs objected. Theexistence of such a policy also was an element of the plaintiffs'Title VII claim. At the class certification hearing, theplaintiffs introduced opinions from sociological and statisticalexperts to buttress their argument that the alleged discriminationat Wal-Mart stores in different regions of the country weresufficiently similar to satisfy the commonality requirement inRule 23(a).

The Ninth Circuit affirmed, but in a 5-4 decision, the SupremeCourt reversed. Justice Scalia, writing for the majority, heldthat a "rigorous analysis" of whether the prerequisites of Rule23(a) have been satisfied "will entail some overlap with themerits of the plaintiff's underlying claim. That cannot behelped." (131 S. Ct. at 2551). The Court went on to conduct anin-depth analysis of the plaintiffs' evidence of a common patternor practice of discrimination (including the testimony provided bythe plaintiffs' expert witnesses), even though that analysis wasrelevant to the merits of plaintiffs' Title VII discriminationclaims, because such an inquiry was necessary to assess"commonality'' under Rule 23(a). (Id. at 2552 ("In this case,proof of commonality necessarily overlaps with [plaintiffs']merits contention that Wal-Mart engages in a pattern or practiceof discrimination. That is so because, in resolving anindividual's Title VII claim, the crux of the inquiry is 'thereason for a particular employment decision' '') (citationomitted)).2 After engaging in that analysis, the Court determinedthat the plaintiffs had failed to provide "convincing proof of acompanywide discriminatory pay and promotion policy," andtherefore had failed to establish the existence of a commonquestion of law or fact as required by Rule 23(a). (Id. at 2556-57).

B. Comcast Corp. v. Behrend

In 2003, cable television subscribers sued Comcast Corporation inthe United States District Court for the Eastern District ofPennsylvania based on allegations that Comcast colluded with TimeWarner Cable, Adelphia Communications, and other cable providersto apportion cable subscribers among the respective cableproviders based on geographic location in violation of the ShermanAct. Comcast argued against class certification on the groundsthat the plaintiffs could not establish "that the questions of lawor fact common to class members predominate over any questionsaffecting only individual members." Fed. R. Civ. P. 23(b)(3).Specifically, Comcast contended that the putative class of 2million customers covered more than 600 franchise areas that faceddifferent competitive conditions, and consequently, there could beno common methodology for awarding damages to the entire class.

The district court held an evidentiary hearing on the plaintiffs'motion for class certification, at which the plaintiffs offered anexpert witness to establish classwide damages. Following thathearing, the district court certified the proposed class, holdingthat the plaintiffs' theory of class-wide damages was "plausible"and ' "susceptible to proof at trial through available evidencecommon to the class.'" (Behrend v. Comcast Corp., 264 F.R.D. 150,155 (E.D. Pa. 2010) (citation omitted), aff'd, 655 F.3d 182 (3dCir. 2011), cert. granted in part, 133 S. Ct. 24 (2012)). Thedistrict court further stated that "[a] plaintiff need notestablish by a preponderance of the evidence the merits of itsclaims at the class certification stage." (Id.)

On appeal, the Third Circuit acknowledged that the antitrustimpact element of the plaintiffs' Sherman Act claim (i.e., aplaintiff's "individual injury'') overlapped with the predominanceprong of Rule 23(b), and therefore had to be evaluated inconnection with the plaintiffs' class certification motion. TheThird Circuit nonetheless declined to resolve the issue of whetherthe plaintiff had offered adequate proof of antitrust impact,reasoning that although a "district court must conduct a 'rigorousanalysis' of the evidence and arguments in making the classcertification decision," such an analysis need only ' ''include apreliminary inquiry into the merits.'" (655 F.3d at 190 (citationomitted; emphasis added)). Like the district court before it, theThird Circuit held that it was only required to determine whetherthe plaintiffs' theory was "capable of proof through evidencecommon to the class." (Id. at 192 (emphasis added)).

The Supreme Court is also currently reviewing another federalappellate decision with significant implications for classcertification issues. In Amgen, Inc. v. Connecticut RetirementPlans & Trust Funds, 132 S. Ct. 2742 (2012), investor plaintiffsbrought suit against Amgen, Inc. in the United States DistrictCourt for the Central District of California, alleging that thecompany made false and misleading statements about two of itsanti-anemia drugs in violation of Section 10(b) of the SecuritiesExchange Act of 1934, and Rule 10b-5 promulgated thereunder. Theplaintiffs moved to certify an investor class, invoking-in orderto establish the predominance requirement of Rule 23(b)-the fraud-on- the-market presumption of reliance articulated by the SupremeCourt in Basic Inc. v. Levinson, 485 U.S. 224 (1988).4Importantly, while the plaintiffs presented evidence on theefficiency of the market for Amgen stock, they did not provide anyevidence regarding the materiality of Amgen's allegedmisrepresentations. Amgen opposed class certification, arguingthat the plaintiffs could not demonstrate that the company'salleged misstatements were material. Amgen asserted that theplaintiffs were therefore not entitled to the fraud-onthe- marketpresumption of reliance, and could not establish that commonquestions predominated as required by Rule 23(b). The districtcourt rejected Amgen's argument, holding that "the inquiriesDefendants urge the Court to make . . . concern the merits of thecase [and] [a]ccordingly, delving into those issues isinappropriate at this time.'' (Connecticut Ret. Plans & TrustFunds v. Amgen, Inc., No. CV 07-2536 PSG, 2009 BL 294840, at *11(C.D. Cal. Aug. 12, 2009), aff'd, 660 F.3d 1170 (9th Cir. 2011),cert. granted, 132 S. Ct. 2472 (2012)).

On Amgen's appeal, the Ninth Circuit acknowledged that: (i) theplaintiffs had to show the existence of common questions of law orfact regarding reliance in order to obtain class certification;and (ii) it had previously held that the fraud-on-the-marketpresumption of reliance is only available where the allegedmisrepresentations are material. (See 660 F.3d at 1176-77.) TheNinth Circuit nonetheless held that the plaintiffs were notrequired to present any evidence regarding the materiality of thealleged misrepresentations to satisfy Rule 23, at least in partbecause materiality involved the merits of the plaintiffs' claims.(Id. at 1177 ("a plaintiff need not prove materiality at the classcertification stage to invoke the [fraud-on-the-market]presumption; materiality is a merits issue to be reached at trialor by summary judgment motion if the facts are uncontested")).5

Thus, like the Third Circuit in Comcast, the Ninth Circuit inAmgen effectively declined to resolve issues of fact that wererelevant to the issue of whether all of the prerequisites of Rule23 had been satisfied because those issues also implicated themerits of the plaintiffs' claims.

The Supreme Court's decisions in Stolt-Nielsen and Concepciondemonstrate that the current configuration of the Court isunapologetically in favor of promoting arbitration as analternative to class action litigation. While these decisionsdealt with arbitration clauses in consumer and/or commercialcontracts, the Court's logic potentially could be applied in othercontexts as well, including to brokerage customers or corporatestockholders. If the Court continues on its current path andreverses the Second Circuit's decision in AmEx and the ThirdCircuit's decision in Sutter, those rulings would further limitthe ability of individual plaintiffs to pursue class remedies,both in the context of litigation and in arbitration.

The Court's decision in Dukes also serves as a significant hurdlethat plaintiffs must overcome to obtain classwide relief. To theextent that the Court follows the reasoning set forth in Dukes inComcast and Amgen, plaintiffs could be required in many instancesto litigate issues regarding the merits of their claims in whatcould amount to mini-trials at the class-certification stage.Such a heightened standard would arm defendants with powerful newarguments for opposing class certification, and force plaintiffs'class counsel to give greater consideration to the merits of theirclaims at the outset of the case, rather than merely hoping topass through the class certification phase and force a settlement.

* Opt-Outs May Bring US-Style Litigation, King & Wood Firm Says---------------------------------------------------------------According to an article by Kylie Sturtz, Esq. --kylie.sturtz@au.kwm.com -- of King & Wood Mallesons, available atLexology, the UK Government is signaling possible changes to theUK's national competition law regime. It has just introduced araft of reform proposals aimed at facilitating collective damagesactions and enabling victims to pursue compensation for theirlosses.

The reason for these extensive changes is that, outside the USA,private damages actions are arguably the least-used and leasteffective lever to encourage competition law compliance. Thereare many reasons for this but two disincentives to private actionsare that:

* the cost of legal action for an individual consumer or smallbusiness is significant relative to the value of loss suffered;and

* calculating the loss suffered by any one claimant iscomplex, e.g., if inflated prices are passed on by customers downthe line it means claimants at different levels of the supplychain will suffer varying degrees of loss, which are difficult toquantify.

The UK Government has decided to tackle this with a three-prongedapproach:

* the Competition Appeal Tribunal's role will be expanded andit will become the main body dealing with UK competition actions;

* alternative dispute resolution will be promoted tofacilitate settlements and reduce the number of cases that gobefore the CAT or the courts; and

The third of these "prong", opt-out class actions, has garneredthe greatest interest and the most comment. During theconsultation process many submissions expressed concern that anopt-out regime would bring forth the many-headed monster of a "USlitigation culture" in the UK. As a result, the government hasintroduced a number of safeguards to reduce the risks of abuse:

* "Opt-out" actions will only be available to UK-basedclaimants.

* Any potential class action will be subject to acertification process in which the CAT will assess the adequacy ofthe representative for the class and will also determine whether acollective action is the best way of bringing the case.

* Exemplary damages will not be permitted -- unlike the USwhere the threat of treble damages encourages companies to settleeven spurious claims.

Only time will tell whether these changes actually achieve theirgoal of enabling compensation for deserving claimants. InAustralia, with our opt-out class actions regimes, it cannot besaid that the floodgates have opened since their introduction andit seems unlikely this will happen in the UK either, particularlywith the safeguards that have been proposed. However, onepossible outcome of these changes may be that the threat oflitigation causes parties to turn to the ADR regime to settleclaims.

These changes indicate a real willingness on the part of the UKGovernment to engage with stakeholders and pursue a vigorousreform agenda in the area of competition law. At home, there hasbeen increased interest in facilitation of private actions and theTreasury Department has consulted with the Law Council ofAustralia and the ACCC about the need for reform. Particularly asthis is an election year, the Government may look to regimesabroad, like the UK, for inspiration and may consider applyingsome of these reforms here.

King & Wood Mallesons -- http://www.kwm.com/-- is a global law firm with over 380 partners and 1,800 lawyers.

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